In the Int. of: M.G., Appeal of: J.G. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.G., FATHER :
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: No. 750 EDA 2021
Appeal from the Order Entered March 30, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001524-2019
IN THE INTEREST OF: M.F.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: J.G., FATHER :
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: No. 751 EDA 2021
Appeal from the Order Entered March 30, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000142-2021
BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 29, 2021
J.G. (Father) appeals from the decree entered in the Court of Common
Pleas of Philadelphia County on March 30, 2021, involuntarily terminating his
parental rights to his son, M.F.G. (Child), born in August 2019, and the order
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* Retired Senior Judge assigned to the Superior Court.
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changing Child’s permanency goal from return to parent to adoption.1 Upon
careful review, we affirm the decree and order.
We summarize the relevant facts and procedural history, as follows. On
September 2, 2019, the Philadelphia Department of Human Services (DHS)
received a general protective services report alleging that Child was in the
neonatal intensive care unit at Temple University Hospital due to respiratory
distress and the need to be monitored for withdrawal symptoms after being
born with fentanyl in his system. Trial Court Opinion, 5/13/21, at 2-3 (citation
to record omitted). The report alleged that Mother tested positive for fentanyl,
suboxone, benzodiazepines, and subutex at Child’s birth. Further, the report
alleged that Mother lived with Father. Id.
After multiple attempts to locate Mother and Father, DHS first
communicated with them by telephone on September 20, 2019, when the
parents visited Child at the hospital. Id. at 3-4 (citation to record omitted).
Mother and Father stated that they were transient and had been residing at a
hotel since August 2019. Id. at 4 (citation to record omitted).
The hospital discharged Child on September 20, 2019, and the trial court
placed him in foster care pursuant to an order of protective custody. Trial
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1 The court issued separate decrees involuntarily terminating the parental
rights of K.F. (Mother), as well as the unknown father. Mother filed notices of
appeal from the decree and the goal change order, docketed at 764 & 765
EDA 2021, which this Court consolidated sua sponte. We address Mother’s
appeal by separate memorandum. The unknown father did not appeal.
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Court Opinion, 5/13/21, at 4-5 (citation to record omitted). By order dated
September 23, 2019, the court placed Child in shelter care. Id. at 5. The
order further provided Mother and Father with supervised visitation twice per
week and required that they be drug tested. Id.
On October 3, 2019, following a hearing, the Honorable Joseph
Fernandes adjudicated Child dependent and continued Child’s placement in
foster care. The court maintained parents’ weekly supervised visitation for
two hour periods. The court referred Mother and Father to the Clinical
Evaluation Unit (CEU) for a dual diagnosis assessment and three random drug
screens to occur before the next hearing. In addition, the court referred
Mother and Father to the Achieving Reunification Center (ARC) to obtain
services related to parenting, housing, employment, and personal finance.
Finally, the court required them to sign appropriate releases and consents
regarding Child. Trial Court Opinion, 5/13/21, at 5 (citing Order of
Adjudication and Disposition, 10/3/2019).
Thereafter, the Community Umbrella Agency (CUA) established a single
case plan (SCP) and scheduled a meeting with Mother and Father to discuss
the plan in late October 2019; however, Father did not attend the meeting.
Id. at 6 (citation to record omitted). The SCP identified Child’s permanency
goal as reunification. In furtherance of the goal, Father was required to satisfy
the following objectives: locate suitable housing; comply with ARC services;
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increase his relationship with Child; address Child’s medical problems; and
address his drug and alcohol concerns. Id.
Following a status review hearing on January 16, 2020, Judge Fernandes
again ordered Mother and Father to obtain a dual diagnosis assessment at the
CEU, as they had not yet done so. Trial Court Opinion, 5/13/21, at 6. On
February 6, 2020, the court conducted a permanency review hearing. That
same day, the court entered an order finding that Mother and Father had
minimally complied with their SCP, and had made no progress toward
alleviating the circumstances which necessitated Child’s placement. Further,
the court ordered Mother and Father to re-engage in the ARC program for
parenting, housing, employment, and personal finance. In addition, the court
ordered Father to provide employment verification to CUA and complete anger
management classes. Id. at 7. The CUA met with Mother and Father on April
20, 2020, and July 7, 2020, which Father attended, and reiterated and
reviewed their objectives and the permanency goal of reunification. Id. at 7-
8.
The next review hearing occurred on September 22, 2020, before the
Honorable Allan L. Tereshko. The court entered an order indicating Father
was referred to ARC twice but discharged for non-attendance, and he still
lacked suitable housing. Trial Court Opinion, 5/13/21, at 8. The court also
found Father had an appointment for an assessment at the CEU two days
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later, on September 24, 2020.2 Finally, the court found Father had declined
virtual visits with Child from March to August 2020, when in-person visits were
prohibited due to COVID. Id.; N.T., 3/30/21, at 20, 28.
On January 29, 2021, CUA held another SCP meeting with Mother and
Father, which Father attended, and repeated and reviewed their objectives
and the permanency goal of reunification. Trial Court Opinion, 5/13/21, at 8-
9.
On March 11, 2021, DHS filed an involuntary termination petition
against Mother and Father pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
(8), and (b), and a petition seeking to change Child’s goal to adoption. The
court convened a combined hearing on the petitions on March 30, 2021. Child,
then nineteen months old, was represented by Deborah Fegan, Esquire,
serving as guardian ad litem (GAL).3 DHS presented testimony from CUA case
manager, Anaya Roberts. Mother and Father testified on their own behalf. At
the conclusion of the hearing, the trial court stated its findings on the record.
N.T., 3/30/21, at 80-83. The court found, in part:
[T]here is a similarity of a narrative running through the cases
and it goes something like this: Mother and [F]ather not
engaged[.] [M]other and [F]ather not complying with
requirements[.] [M]other and [F]ather did not engage with ARC,
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2 The CEU assessment did not result in treatment recommendations for Father.
N.T., 3/30/21, at 28.
3 The GAL has joined DHS’s brief advocating in support of the decree and
order.
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did not engage with CEU, did not engage with mental health[.]
[M]other and [F]ather do not have housing.
That narrative began back in 2019, and I heard the same
testimony today. Mother and [F]ather still do not have housing.
Mother and [F]ather have failed to submit any evidence
that they have rectified any of the issues that brought
[C]hild into care.
...
N.T., 3/30/21, at 81 (emphasis added).
By decree dated and entered on March 30, 2021, the court involuntarily
terminated Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8), and (b), and issued an order changing Child’s permanency goal
to adoption. Father timely filed a notice of appeal from the decree on the
adoption docket, along with a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b); Father also filed a notice
of appeal from the order on the dependency docket, along with a concise
statement of errors complained of an appeal.4 This Court consolidated
Father’s appeals sua sponte. The trial court entered a Rule 1925(a) opinion
on May 13, 2021.
Father presents the following five issues for review:
1. Whether the trial court committed reversible error when it
involuntarily terminated [F]ather’s parental rights, where such
determination was not supported by clear and convincing evidence
under the [A]doption [A]ct, 23 Pa.C.S.A. § 2511(a) and (b)[?]
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4 By filing separate notices of appeal under each trial court docket number,
Father complied with our Supreme Court’s decision in Commonwealth v.
Walker, 185 A.3d 969, 971 (Pa. 2018).
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2. Whether the trial court committed reversible error when it
involuntarily terminated [F]ather’s parental rights without giving
primary consideration to the effect that the termination would
have on the developmental, physical and emotional needs of
[C]hild as required by the [A]doption [A]ct, 23 Pa.C.S.A. §
2511(b)[?]
3. Whether the trial court erred because the evidence was
overwhelming and undisputed that [F]ather demonstrated a
genuine interest in sincere, persistent, and unrelenting effort to
maintain a parent-child relationship with [C]hild [?]
4. Whether the trial court abused its discretion and erred as a
matter of law in changing the permanency goal to adoption from
reunification, as there was not competent evidence that it was in
the best interests of [C]hild[?]
5. Whether the trial court abused its discretion and erred as a
matter of law by involuntarily terminating [F]ather’s parental
rights in that it violated the orders of Judge Walter J. Olszewski,
Supervising Judge of Philadelphia Family Court[,] dated April 16,
2020 and August 25, 2020[,] which ordered that lack of treatment
or services due to inability to access them during the Covid-19
pandemic would not to be considered as a lack of compliance and
tolled the deadlines for filing termination and goal change
petitions from the date of March 16, 2020[,] until the order was
lifted which has not yet been done at the time of filing this
appeal[?]
Father’s Brief at 8-9.
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
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the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We
need only agree with the trial court as to any one subsection of Section
2511(a), as well as Section 2511(b), to affirm a termination decree. In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
In his first issue, Father argues that the trial court abused its discretion
and/or erred in terminating his parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(1), (2), (5), and (8). Father’s brief at 20-25. However, in his concise
statement of errors complained of on appeal filed on the adoption docket,
Father asserted errors regarding Section 2511(a)(1) and (2) only. Thus,
Father has waived his claims concerning Section 2511(a)(5) and (8) by failing
to include them in his concise statement. See In re M.Z.T.M.W., 163 A.3d
462, 466 (Pa. Super. 2017) (“it is well-settled that issues not included in [a]
. . . concise statement of errors complained of on appeal are waived.”) (citing
Krebs v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006)).
Even if Father properly preserved his claim under Section 2511(a)(8),
he is not entitled to relief. We review the decree for an abuse of discretion,
as follows:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
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of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations omitted).
Section 2511(a)(8) provides:
(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:
...
(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.
...
23 Pa.C.S.A. § 2511(a)(8).
This Court has explained, “Section 2511(a)(8) sets a 12-month time
frame for a parent to remedy the conditions that led to the children’s removal
by the court.” In re A.R., 837 A.2d 560, 564 (Pa. Super. 2003). Once the
twelve-month period has been established, the court must next determine
whether the conditions that led to the child’s removal continue to exist, despite
the reasonable good faith efforts of the agency supplied over a realistic period.
Id. Termination under Section 2511(a)(8) does not require the court to
evaluate a parent’s current willingness or ability to remedy the conditions that
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initially caused placement or the availability or efficacy of the agency’s
services. In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super.
2003). The “relevant inquiry in this regard is whether the conditions that led
to removal have been remedied and thus whether reunification of parent and
child is imminent at the time of the hearing.” In re I.J., 972 A.2d 5, 11 (Pa.
Super. 2009). We have acknowledged:
[T]he application of Section (a)(8) may seem harsh when the
parent has begun to make progress toward resolving the problems
that had led to removal of her children. By allowing for
termination when the conditions that led to removal continue to
exist after a year, the statute implicitly recognizes that a child’s
life cannot be held in abeyance while the parent is unable to
perform the actions necessary to assume parenting
responsibilities. This Court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a
parent’s claims of progress and hope for the future.
In re J.F.M., 71 A.3d 989, 997 (Pa. Super. 2013) (quoting I.J., 972 A.2d
at 11–12). Lastly, the court must determine whether termination of parental
rights would best serve the needs and welfare of the child. In re Adoption
of C.L.G., 956 A.2d 999, 1008-1009 (Pa. Super. 2008) (en banc).
Here, the trial court credited the testimony of CUA case manager Anaya
Roberts that Father did not have appropriate housing at the time of the
hearing. Father engaged in the ARC program for the aforementioned services
after his third referral on January 20, 2021,5 but he continued to reside with
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5 Father testified that he did not receive the earlier referrals to ARC, but the
court found him not credible based on the permanency order findings that
(Footnote Continued Next Page)
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his mother in Royersford, Pennsylvania, who “had two valid [general
protective services] reports [against her] in Montgomery County, PA,” which
made her home unsuitable for Father to reunify with Child. Trial Court
Opinion, 5/13/21, at 13 (citing N.T., 3/30/21, at 26-28). Thus, Father’s
housing objective remained outstanding.
At the time of the hearing, Father was waiting for parenting classes to
become available through ARC, and so he had completed none. Id. at 14
(citing N.T., 3/30/21, at 34-35). With respect to visitation, it remained
supervised throughout this case, and Father attended one hour visits in-
person with Child every week. Id. (citing N.T., 3/30/21, at 28-29). Ms.
Roberts testified on direct examination:
Q. At this time, today, 18 months later, is [F]ather in the position,
or close to a position[,] for reunification with Child?
A. Not at this time.
N.T., 3/30/21, at 30. Because Father was still working on his SCP goals, “and
the current resource parent can provide . . . stability and permanency right
now,” Ms. Roberts testified Child will not suffer irreparable harm if Father’s
parental rights are terminated. Id. at 31.
Child was nineteen months old at the time of the termination hearing,
and he had been in placement since his discharge from the hospital after birth,
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“Father was referred to ARC twice, and was discharged for non-attendance.”
N.T., 3/30/21, at 67.
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approximately eighteen months earlier. Reunification was not imminent
because the conditions which led to Child’s placement continued to exist, and
termination of Father’s parental rights would best serve Child’s needs and
welfare because he resided in a pre-adoptive home which offered him
permanence and stability. N.T., 3/30/21, at 31. Accordingly, if Father had
not waived his claim under Section 2511(a)(8), it would fail because the trial
court did not abuse its discretion in terminating his parental rights under that
subsection.
In his second issue, Father argues that the court abused its discretion
and/or erred in terminating his parental rights pursuant to Section 2511(b)
because there was “a developing bond” between him and Child and to sever
this bond would be harmful to Child. Father’s brief at 27. We disagree.
Section 2511(b) provides:
(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(b).
With respect to Section 2511(b), we have explained, “[i]ntangibles such
as love, comfort, security, and stability are involved in the inquiry into the
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needs and welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.
Super. 2005) (citation omitted). Further, the trial court “must also discern
the nature and status of the parent-child bond, with utmost attention to the
effect on the child of permanently severing that bond.” Id. (citation omitted).
However, “[i]n cases where there is no evidence of any bond between the
parent and child, it is reasonable to infer that no bond exists. The extent of
any bond analysis, therefore, necessarily depends on the circumstances of the
particular case.” In re K.Z.S., 946 A.2d 753, 762-763 (Pa. Super. 2008)
(citation omitted).
Our Supreme Court has stated, “Common sense dictates that courts
considering termination must also consider whether the children are in a pre-
adoptive home and whether they have a bond with their foster parents.” In
re T.S.M., 71 A.3d at 268. Moreover, the Court directed that, in weighing the
bond considerations pursuant to Section 2511(b), “courts must keep the
ticking clock of childhood ever in mind.” Id. at 269. The T.S.M. Court
observed, “[c]hildren are young for a scant number of years, and we have an
obligation to see to their healthy development quickly. When courts fail . . .
the result, all too often, is catastrophically maladjusted children.” Id.
The trial court in this case credited Ms. Roberts’ testimony and found:
[Child] has been at this same home since December 2019 and is
bonded to the resource parent. . . . Ms. Roberts noted that Child
looks to the resource parent to meet all of his developmental,
emotional, medical and daily needs. He has a parental
relationship with the resource parent and minimal relationship
with . . . Father. Regarding visitation, Ms. Roberts noted that
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Father visits Child once a week for one hour. She testified Father
has not placed himself in the position to care for Child. Ms.
Roberts opined Child would not be irreparably harmed if Father’s
parental rights were terminated and Child be adopted by the pre-
adoptive resource parent.
Trial Court Opinion, 5/13/21, 16-17.
Ms. Roberts testified that Child “is very bonded” to his foster mother,
who has met all of his developmental, emotional, medical, and daily needs.
N.T., 3/30/21, at 23. She stated that Mother and Father have a relationship
with Child, “but it’s very minimal.” Id. at 24. Accordingly, we discern no
abuse of discretion by the court in concluding that terminating Father’s
parental rights will serve the developmental, physical, and emotional needs
and welfare of Child. Father’s second issue fails.
In his third issue, Father argues that he demonstrated a genuine interest
and effort to maintain a parent-child relationship with Child, which we deem
relevant to whether his conduct warranted termination under Section
2511(a)(1). See In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citation
omitted) (Section 2511(a)(1) requires that the moving party “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.”). This Court has explained 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
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or her ability, even in difficult circumstances.” In re B., N.M., 856 A.2d 847,
855 (Pa. Super. 2004) (citation omitted).
Because we have concluded the trial court did not abuse its discretion
in terminating Father’s parental rights pursuant to Section 2511(a)(8), we
need not review the decree under Section 2511(a)(1). See In re B.L.W.,
843 A.2d at 384 (stating that we need only agree with the trial court as to any
one subsection of Section 2511(a), as well as Section 2511(b), to affirm a
termination decree). Accordingly, Father’s third issue fails.
In his fourth issue, Father argues that the court abused its discretion
and erred in changing Child’s permanency goal from reunification to adoption
pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6351(f) (Disposition of dependent
child). However, Father has waived this issue for failing to include it in his
concise statement of errors complained of on appeal filed on the dependency
docket. See In re M.Z.T.M.W., 163 A.3d at 466 (“it is well-settled that issues
not included in [a] . . . concise statement of errors complained of on appeal
are waived.”) (citing Krebs, 893 A.2d at 797).
Even if Father had properly preserved this issue, he would not be
entitled to relief. First, given our disposition concerning termination, we would
conclude that his appeal from the goal change order is moot. See In the
Interest of D.R.-W., 227 A.3d 905, 917 (Pa. Super. 2020) (citing In re D.A.,
801 A.2d 614, 616 (Pa. Super. 2002)) (“[E]ven if Father had not waived his
goal change claim, it would be moot in light of our decision to affirm the court’s
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termination decrees.”). Second, if not moot, Father’s claim would be without
merit.
We review the goal change order for an abuse of discretion. In re S.B.,
943 A.2d 973, 977 (Pa. Super. 2008) (citations omitted). This Court explained
the relevant statutory provisions, as follows:
Pursuant to [42 Pa.C.S.] § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent child, the
juvenile court is to consider, inter alia: (1) the continuing
necessity for and appropriateness of the placement; (2) the extent
of compliance with the family service plan; (3) the extent of
progress made towards alleviating the circumstances which
necessitated the original placement; (4) the appropriateness and
feasibility of the current placement goal for the children; (5) a
likely date by which the goal for the child might be achieved; (6)
the child’s safety; and (7) whether the child has been in placement
for at least fifteen of the last twenty-two months. The best
interests of the child, and not the interests of the parent, must
guide the trial court. As this Court has held, a child’s life simply
cannot be put on hold in the hope that the parent will summon
the ability to handle the responsibilities of parenting.
In re A.B., 19 A.3d 1084, 1088-1089 (Pa. Super. 2011) (citations and
quotation marks omitted). These statutory mandates “clearly place the trial
court’s focus on the best interests of the child.” In re S.B., 943 A.2d at 978(citation omitted). Indeed, “[s]afety, permanency, and well-being of the child
must take precedence over all other considerations.” Id. (citation omitted)
(emphasis in original). Our Supreme Court has stated, “the burden is on the
child welfare agency . . . to prove that a change in goal would be in the child’s
best interest.” In re R.I.S., 36 A.3d 567, 573 (Pa. 2011).
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Father asserts that reunification remained a viable option because there
was no evidence that he lacked the capacity to parent. He argues that the
court overlooked his efforts toward reunification in violation of the Juvenile
Act’s primary purpose of family preservation. We disagree.
At the time of the hearing on March 30, 2021, Child was in placement
for approximately eighteen months, his entire life after discharge from the
hospital. During that time, Father failed to timely comply with his SCP
objectives. He did not engage with the ARC program until his third referral on
January 20, 2021. Father had not obtained appropriate housing, and he had
not started parenting classes. In addition, Father’s visits had never
progressed to unsupervised. Ms. Roberts opined that Father was not in a
position to parent Child. On this record, the court found the goal change to
adoption was in Child’s best interests. In re S.B., 943 A.2d at 978 (“Safety,
permanency, and well-being of the child must take precedence over all other
considerations.”). Accordingly, even if Father had properly preserved this
issue and it was not moot, we would discern no abuse of discretion.
Lastly, Father argues that the court abused its discretion and/or erred
by involuntarily terminating his parental rights in violation of administrative
orders in the Court of Common Pleas of Philadelphia County, Family Division,
Juvenile Dependency Branch, dated April 16, 2020 and August 25, 2020,
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relating to dependency cases during the statewide judicial emergency caused
by COVID-19.6
The April 16, 2020 order directed that in-person supervised visitation be
modified to virtual visitation. The order further provided that a parent’s
inability to access treatment or services “due to provider closures . . . shall
not be interpreted as a lack of compliance with court-ordered services or
treatment and/or permanency plan objectives.” Order, 4/16/20, at 3
(emphasis in original). In addition, the order directed DHS/CUA to “provide
reasonable efforts to ensure” a parent is “able to meaningfully participate in
mandated services” during the pandemic, including, but not limited to,
“[i]nquiring actively about, and closely monitoring, the availability of
treatment and other services.” Id. Finally, the order provided:
Consistent with the Order of the Supreme Court of Pennsylvania,
which, in pertinent part, tolled judicial timelines during the
statewide judicial emergency, all judicial timelines established
under the responsibility of DHS for filing termination petitions . . .
pursuant to . . . 42 Pa.C.S.A. § 6351(f)(9) for purposes of
involuntary termination of parental rights under the Adoption Act,
. . . are TOLLED from the date of March 16, 2020 until the date on
which this Order is lifted by the Court.
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6 On March 16, 2020, the Pennsylvania Supreme Court issued an order
declaring a statewide judicial emergency until April 14, 2020. The Supreme
Court also authorized president judges in each judicial district to declare a
local judicial emergency. On March 18, 2020, the Pennsylvania Supreme
Court declared a judicial emergency in all districts, and closed all courts to the
public, subject to certain exceptions, until at least April 3, 2020. The Court
subsequently extended the statewide judicial emergency to June 1, 2020.
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Order, 4/16/20, at 3. The August 25, 2020 order directed that in-person visits
may recommence, inter alia, and included the above provisions from the April
16, 2020 order.
Father argues that the court erred in terminating his parental rights and
changing Child’s goal to adoption because the administrative orders tolled the
judicial timelines. However, Father is not entitled to relief because he did not
raise any issues pertaining to the administrative orders prior to or at the
termination hearing.
Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal. Pa.R.A.P. 302(a). In Jahanshahi v. Centura
Development Co., Inc., 816 A.2d 1179 (Pa. Super. 2003), we referenced
the Supreme Court’s emphasis on raising claims at the earliest opportunity to
“eliminate the possibility that an appellate court will be required to expend
time and energy reviewing claims on which no trial ruling has been made.”
Id. at 1189 (emphasis in original) (citation omitted). Furthermore:
On appeal, we will not consider assignments of error that were not
brought to the tribunal’s attention at a time at which the error
could have been corrected or the alleged prejudice could have
been mitigated. Tindall v. Friedman, 970 A.2d 1159, 1174 (Pa.
Super. 2009). “In this jurisdiction one must object to errors,
improprieties or irregularities at the earliest possible stage of the
adjudicatory process to afford the jurist hearing the case the first
occasion to remedy the wrong and possibly avoid an unnecessary
appeal to complain of the matter.” Id. (quoting Thompson v.
Thompson, 963 A.2d 474, 475-46 (Pa. Super. 2008) (citation
omitted)).
State Farm Mutual v. Dill, 108 A.3d 882, 885 (Pa. Super. 2015) (en banc)
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(emphasis added). Thus, we conclude the issue is waived.
Even if not waived, the issue lacks merit. The trial court stated that it
followed the administrative orders. Trial Court Opinion, 5/13/21, at 19.
Indeed, DHS responds in its brief that the effect of the administrative orders
is to toll the timeframe, i.e., 15 of the last 22 months, in which it must file a
termination petition or be excused from doing so.7 DHS brief at 36. However,
____________________________________________
7 Section 6351(f)(9) provides:
§ 6351. Disposition of dependent child.
...
(f) Matters to be determined the permanency hearing. — At
each permanency hearing, a court shall determine all of the
following:
...
(9) If the child has been in placement for at least 15 of the
last 22 months or the court has determined that aggravated
circumstances exist and that reasonable efforts to prevent or
eliminate the need to remove the child from the child’s
parent, guardian or custodian or to preserve and reunify the
family need not be made or continue to be made, whether
the county agency has filed or sought to join a petition to
terminate parental rights and to identify, recruit, process and
approve a qualified family to adopt the child unless:
(i) the child is being cared for by a relative best suited
to the physical, mental and moral welfare of the child;
(ii) the county agency has documented a compelling
reason for determining that filing a petition to terminate
parental rights would not serve the needs and welfare of
the child; or
(Footnote Continued Next Page)
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DHS states that it is still authorized to file termination petitions in accordance
with the Adoption Act. Id. We agree. Because Father provides no evidence
that the court abused its discretion and/or erred by involuntarily terminating
his parental rights, Father’s final issue, if not waived, would fail.
Termination decree affirmed. Goal change order affirmed.
Judge Dubow did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2021
____________________________________________
(iii)
the child’s family has not been provided with necessary
services to achieve the safe return to the child’s parent,
guardian or custodian within the time frames set forth in
the permanency plan.
For children placed in foster care on or before November
19, 1997, the county agency shall file or join a petition
for termination of parental rights under this subsection
in accordance with section 103(c)(2) of the Adoption and
Safe Families Act of 1997 (Public Law 105-89, 111 Stat.
2119).
42 Pa.C.S.A. § 6351(f)(9).
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