In the Interest of: C.S., Appeal of: K.S. ( 2024 )

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2024 PA Super 261IN THE INTEREST OF: C.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.S., MOTHER :
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: No. 505 WDA 2024
Appeal from the Order Entered April 17, 2024
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000177-2023
BEFORE: MURRAY, J., McLAUGHLIN, J., and KING, J.
OPINION BY MURRAY, J.: FILED: November 6, 2024
K.S. (Mother) appeals from the order granting the petition filed by the
Allegheny County Office of Children, Youth, and Families (the Agency or CYF),
and involuntarily terminating Mother’s parental rights to C.S. (a son born in
May 2022) (Child).1 Upon careful review, we affirm.
The orphans’ court explained how Mother came to the attention of CYF:
At [C]hild’s birth, he tested positive for cocaine, methadone and
fentanyl. Mother identified A.H. as Father; however, paternity has
not been established. Mother has two other children that were in
CYF[’s] care since 2015. … Mother struggled in the past with
housing, drug and alcohol [abuse], and intimate partner violence
…. At the time of [] Child’s birth, CYF visited Mother at the UPMC
Magee-Womens Hospital and determined Mother and Father were
homeless and lived in an abandoned building in the Homewood
section of the City of Pittsburgh.
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1 The orphans’ court also involuntarily terminated the rights of A.H. (Father).
Father is not a party to the instant appeal.
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Mother received assistance [from] UPMC Magee-Women[]s
Hospital to address her drug usage throughout the course of the
pregnancy for methadone, crack cocaine, and fentanyl …. The
hospital facilitated Mother’s admission into the Sojourner House[,
a substance abuse facility, for methadone maintenance]. Mother
admitted[] us[ing] said substances during the pregnancy term.
Father was not assessed at that time by CYF due to an active
arrest warrant. Mother also had an arrest warrant at the time of
Child’s birth and was not assessed by CYF. Child was adjudicated
dependent on August 24, 2022. Aggravated circumstances were
found in this case due to Child having no contact with either parent
for six[ ]months. …
….
CYF created a family plan to address the issues that led to
Child’s removal and placement. In addition to establishing and
maintaining contact with the [A]gency, the goals for the family
included: drug and alcohol [treatment]; mental health; visitation
and parenting; as well as obtaining housing.
Orphans’ Court Opinion, 5/30/24, at 5-8 (footnotes omitted).
On July 21, 2023, CYF filed a petition to involuntarily terminate the
parental rights (TPR petition) of Mother pursuant to 23 Pa.C.S.A. §
2511(a)(1), (2), (5), (8), and (b). CYF specifically alleged that Child remained
in placement “due to [M]other’s failure to successfully complete her Family
Plan and court-ordered goals.” TPR Petition, 7/21/23, at 4 (unpaginated). On
October 4, 2023, Mother, through legal counsel,2 requested a contested
hearing date, which the orphans’ court scheduled for April 11, 2024.
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2 Jeffrey K. Eisenberg, Esquire (Counsel), represented Mother in the TPR
action.
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Pertinently, however, on January 4, 2024, CYF filed a motion seeking
the appointment of a guardian ad litem (GAL) for Mother. Therein, CYF
averred that Mother was “currently hospitalized and in a coma.” Motion to
Appoint GAL, 1/4/24, at 1 (unpaginated). The orphans’ court scheduled a
hearing on CYF’s motion for February 14, 2024.
At the hearing, Counsel objected to the appointment of a GAL for
Mother. N.T., 2/14/24, at 29. Counsel acknowledged that Mother was
incapacitated, but maintained the orphans’ court had no authority to appoint
a GAL to represent an adult in a TPR action. See id. at 4, 25. Counsel
represented that Child’s maternal grandmother (Grandmother), “initiated
proceedings in Orphans’ Court to obtain guardianship over [Mother]. Not just
[GAL,] but full guardianship.” Id. at 3. Counsel requested a continuance in
order for the Orphans’ Court Division to adjudicate Grandmother’s
guardianship petition. See id. at 6.
At the conclusion of the hearing, the orphans’ court rejected Counsel’s
arguments and indicated it intended to appoint Mother a GAL over Counsel’s
objection. See id. at 31. The orphans’ court emphasized Child’s need for
permanency, and explained that waiting for Grandmother’s petition to be
resolved would require an indeterminate delay of the termination proceedings.
See id. at 7, 12, 14.
The orphans’ court held a status conference on March 20, 2024, where
Counsel renewed his objection to the appointment of a GAL for Mother. N.T.,
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3/20/24, at 8. Counsel explained that he had spoken with Mother “prior to
her inability to communicate,” was aware that she intended to contest the
Agency’s TPR petition, and that Mother would not benefit from the
appointment of a GAL. Id. at 10. The orphans’ court inquired of Counsel
whether Mother would suffer any harm if it appointed Mother a GAL. Id. at
12. Counsel stated that if the GAL’s recommendation did not conflict with
Mother’s desire to contest the TPR petition, “it doesn’t seem like there would
be any harm if there were a GAL appointed.” Id. at 13. On March 25, 2024,
the orphans’ court appointed Todd Zwikl, Esquire, as Mother’s GAL. See
Order, 3/25/24.
The TPR hearing proceeded as scheduled on April 11, 2024. Due to her
incapacity, Mother was not present, but was represented by Counsel.
KidsVoice represented Child, and indicated there was no conflict between
Child’s best and legal interests. See N.T., 4/11/24, at 125; see also N.T.,
10/4/23, at 8-9. Prior to the hearing, Mother’s GAL advised the orphans’ court
that Mother “had no ability to speak to [him] or to exchange information or
respond to anything [he] asked of her.” N.T., 4/11/24, at 5. Mother’s GAL
opined that Mother’s “rights … are being adequately represented by” Counsel,
and offered no further opinion. Id. at 10. The orphans’ court accepted GAL’s
written report into evidence, and GAL did not remain for the rest of the
proceeding. See id. at 14.
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Following GAL’s report to the orphans’ court, the Agency presented the
testimony of Jolene James (Ms. James), Assistant Director of Nursing at
Quality Life Services; Dawn Johnson (Ms. Johnson), a CYF caseworker; and
Lori Marshall (Ms. Marshall), A Second Life caseworker.
Ms. James testified that Mother was admitted to Quality Life Services, a
health care facility offering short-term rehabilitation and long-term care
services, on February 12, 2024. See id. at 16-17. Ms. James explained that
Mother required 24-hour care as the result of an anoxic brain injury. See id.
at 17-18. Mother’s condition rendered her unable to communicate or perform
any basic functions to care for herself. See id. at 18. In response to Counsel’s
question concerning whether there had been any improvement in Mother’s
ability to communicate since her admission date, Ms. James testified:
[Mother] has a nystagmus of her eyes, which means they both
bounce back and forth. She turns towards a voice, but she does
not focus on any voices or faces. So is she able to make any kind
of eye contact, blink for communication? No, she’s not. Has she
made any changes or improvements? No.
Id. at 19.
The orphans’ court summarized the evidence adduced from Ms.
Johnson’s testimony, as follows:
Mother did not … provide any proof [of] completion [of] any
drug and alcohol treatment [program] …. Mother was
incarcerated for approximately eighteen months and did not offer
any evidence of programs completed.
Mother never complied with the housing goal throughout the
pendency of this case[,] as she was either homeless, lived in
abandoned buildings, or was incarcerated.
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Mother did not meet the parenting or visitation goal. Mother
has two other children[, who are] not in her care. Although []
Child remained hospitalized after testing positive [for illegal
drugs] at birth, Mother did not visit Child[,] nor seek visitation
after giving birth.
Child has been in CYF’s care since June 7, 2022. Since that
time, Mother had one virtual visit with Child while partially
incarcerated at the Renewal Center[, a community corrections
organization]. CYF attempted to set up video visits between
Mother and Child through caseworkers at the Allegheny County
Jail, but the visits never occurred due to difficulties from Mother
being transported to and from the Westmoreland County Jail,
where she remained incarcerated until November 2023.
Child resides with maternal aunt and uncle[ (foster parents),
who are preadoptive resources]. Th[e orphans’ court] appointed
an education and medical decision maker for [] Child due to
[medical] issues that required tubes to be inserted into his ears,
and neither [Mother nor Father] was available to sign off on the
procedure.
Lastly, Mother did not participate in [court-ordered] mental
health treatment. … Mother did not undergo a mental health
evaluation. Furthermore, Mother did not attend any mental health
treatments since Child’s birth.
Orphans’ Court Opinion, 5/30/24, at 8-10 (footnotes omitted).
Ms. Marshall testified that her role at A Second Chance, Incorporated,
was to ensure Child’s foster parents were satisfying Child’s needs. N.T,
4/11/24, at 90. Ms. Marshall opined that Child “has a very good relationship”
with foster parents. Id. at 94; see also id. at 86 (Ms. Marshall testifying that
removal of Child from foster parents’ home would be detrimental “[b]ecause
he does have a healthy bond [with foster parents], and that’s the only space
that [Child] has ever known”); id. at 98 (Ms. Marshall testifying that foster
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parents “go above and beyond” in their care for Child). Additionally, Ms.
Marshall testified that foster parents also care for Child’s biological brother
and half-sister, and Child’s siblings, too, have a positive and beneficial
relationship with Child. See id. at 78, 98-100.
At the close of testimony, CYF moved for the admission of, inter alia, an
“interactional evaluation” report, authored by Dr. Patricia Pepe (Dr. Pepe), a
licensed psychologist, after she assessed the bond between Child and foster
parents. See id. at 103; see also CYF Exhibit 6. Mother did not object to
the report’s admission. See id. Dr. Pepe’s report concluded, in pertinent
part, as follows:
[Child] has been placed with … [foster parents] since his
release from the hospital following his birth. According to [foster
mother], … [Mother] is now in a coma and not expected to survive.
[Foster parents] are also providing a home for [Child’s] sibling[s].
[Child] is obviously thriving in [foster parents’] care to the point
that he has exceeded the expectations of his developmental
specialist and no longer requires services. …. [Child] exhibited
multiple bonding behaviors suggestive of a positive and primary
attachment toward his foster parents. He was consistently
interacting with both [foster parents], always with a big and bright
smile. Further, [foster parents] are obviously very committed to
[C]hild.
CYF Exhibit 6 at 4.
At the conclusion of the termination hearing, the orphans’ court took the
matter under advisement. On April 17, 2024, the orphans’ court filed an order
terminating Mother’s parental rights to Child. Mother filed a timely notice of
appeal and contemporaneous Pa.R.A.P. 1925(a)(2)(i) concise statement. The
orphans’ court has also complied with Rule 1925.
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Mother raises the following issues for our review:
1. Did the [orphans’] court abuse its discretion and/or err as a
matter of law in appointing a [GAL] for Mother in the [TPR]
matter?
2. Did the [orphans’] court abuse[] its discretion and/or err[] as
a matter of law in considering Mother’s current physical condition
when such condition was not identified or alleged in the petition
to involuntarily terminate parental rights as a condition that has
kept [C]hild in care?
3. Did the [orphans’] court abuse its discretion and/or err as a
matter of law in granting the petition to involuntarily terminate
Mother’s parental rights pursuant to 23 Pa.C.S.[A.] § 2511(a)(1)?
4. Did the [orphans’] court abuse its discretion and/or err as a
matter of law in granting the petition to involuntarily terminate
Mother’s parental rights pursuant to 23 Pa.C.S.[A.] § 2511(a)(2)?
5. Did the [orphans’] court abuse its discretion and/or err as a
matter of law in granting the petition to involuntarily terminate
Mother’s parental rights pursuant to 23 Pa.C.S.[A.] § 2511(a)(5)?
6. Did the [orphans’] court abuse its discretion and/or err as a
matter of law in involuntarily terminating Mother’s parental rights
pursuant to 23 Pa.C.S.[A.] § 2511(a)(8)?
7. Did the [orphans’] court abuse its discretion and/or err as a
matter of law in concluding that CYF met its burden of proving by
clear and convincing evidence that termination of Mother’s
parental rights would best serve the needs and welfare of [Child]
pursuant to 23 Pa.C.S.[A.] § 2511(b)?
Mother’s Brief at 7-8 (issues reordered).
We review the termination of parental rights for an abuse of discretion.
See In the Int. of K.T., 296 A.3d 1085, 1104 (Pa. 2023). This standard of
review 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
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findings are supported, appellate courts review to determine if the
trial court made an error of law or abused its discretion. As has
been often stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.
As [the Pennsylvania Supreme Court] discussed in [In re:]
R.J.T., [9 A.3d 1179, 1190 (Pa. 2010)], there are clear reasons
for applying an abuse of discretion standard of review…. [U]nlike
trial courts, appellate courts are not equipped to make fact-
specific determinations on a cold record, where 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations
omitted).
In her first issue, Mother faults the orphans’ court for appointing Mother
a GAL, arguing “[t]here is no statute or rule empowering a[n orphans’] court
in a [TPR] proceeding to appoint a [GAL] for an adult person.” Mother’s Brief
at 27.
The Pennsylvania Rules of Orphans’ Court Procedure define a GAL as “a
fiduciary who is appointed by a court in a legal proceeding to represent an
individual or class of individuals under a legal disability.” Pa.R.O.C.P. 1.3. An
orphans’ court derives its authority to appoint GALs in TPR actions from the
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Adoption Act. See 23 Pa.C.S.A. § 2313(a) (the court may appoint a GAL to
represent a child in a TPR action when it is in the bests interests of the child).
Prior to its June 30, 2022, rescission and replacement, Orphans’ Court Rule
15.4(c)(1) (pre-rescission Rule 15.4) provided a limited avenue for the
appointment of a GAL for a parent in a TPR action. See Pa.R.O.C.P. 15.4(c)(1)
(effective to June 30, 2022, “the court shall appoint [a minor parent] a
[GAL,]” “unless the court finds the parent is already adequately represented”).
The only other source of authority for an orphans’ court to appoint a
GAL is found in Orphans’ Court Rule 5.5(a)(1). The Rule provides, in relevant
part, as follows:
(a) On petition of the accountant or any interested party, or upon
its own motion, the court may appoint [a GAL] if the court
considers that the interests of the non-sui juris individuals
are not adequately represented:
(1) a [GAL] to represent a minor or a person believed to
be incapacitated under the provisions of Chapter 55 of Title
20, but for whom no guardian of the estate is known to
have been appointed by a Pennsylvania court or by the
court of any other jurisdiction[.]
Pa.R.O.C.P. 5.5(a)(1) (emphases added).
“There are two classes of guardian: (1) guardian of the person, who
assumes primary physical responsibility for the care and custody of the
incapacitated individual[,] and (2) guardian of the estate, who is entrusted
with the control of the property of the incapacitated individual.” See
In re C.A.J., 319 A.3d 564, 572 (Pa. Super. 2024) (citation omitted;
emphasis added)). We are further cognizant that Rule 5.5 does not grant a
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GAL “sweeping powers” over the financial and medical decisions of an
incapacitated person. See Estate of J.L.C., ___ A.3d ___, 2024 PA Super
151, *8 (Pa. Super. filed July 22, 2024).
Chapter 55 of Title 20 (Decedents, Estates and Fiduciaries) sets forth
the statutory law concerning incapacitated persons and guardianship. Section
5502 explains “it is the purpose of this chapter to promote the general welfare
of all citizens by establishing a system which permits incapacitated persons to
participate as fully as possible in all decisions which affect them,” and to
“protect[] their rights….” 20 Pa.C.S.A. § 5502. An “incapacitated person” is
defined as
an adult whose ability to receive and evaluate information
effectively and communicate decisions in any way is impaired to
such a significant extent that he is partially or totally unable to
manage his financial resources or to meet essential requirements
for his physical health and safety.
Id. § 5501. Sections 5511 and 5513, respectively, describe the procedures
for an individual to petition to serve as guardian and emergency guardian of
an incapacitated person. See id. §§ 5511, 5513. Pertinently, however, “the
court may not grant to a guardian powers controlled by other statute,
including, but not limited to, the power… [t]o consent, on behalf of the
incapacitated person, to the relinquishment of the person’s parental
rights.” Id. § 5521(f)(2) (emphasis added).
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In her scant, one-page argument, Mother cites In re J.L.P., 215 A.3d
627, 1552 MDA 2018 (Pa. Super. 2019) (unpublished memorandum), 3 for the
proposition that “an incapacitated parent is not entitled to a GAL in a TPR
matter when that parent already has legal counsel providing adequate
representation ….” Mother’s Brief at 27-28. Mother maintains the
“appointment of a GAL for Mother was an error that compromised the
framework of the TPR proceeding and constitutes a structural error… not
subject to [a] harmless error analysis ….” Id. at 28 (citing In re L.B.M., 161
A.3d 172 (Pa. 2017)).
In response, CYF relies on In re S.C.B., 990 A.2d 762 (Pa. Super. 2010)
(discussed infra), and pre-rescission Rule 15.4(c)(1).4 CYF Brief at 47. CYF
concedes that “a GAL is not required when a parent is adequately represented
by counsel.” Id. CYF maintains, however, that “the failure of the [o]rphans’
[c]ourt [j]udge in the S.C.B. case to mandate that the GAL appear at hearings
was found to be harmless error.” Id. CYF continues:
The purpose for the GAL [in the instant case] was to ensure that
[Mother]’s rights were protected when [Mother] was not able to
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3 In her brief, Mother acknowledges that unpublished memoranda filed after
May 1, 2019, may be cited for their persuasive value. See Mother’s Brief at
28 (citing Pa.R.A.P. 126(b)). In re J.L.P. is an unpublished memorandum
decision that this Court filed on March 7, 2019.
4 In its brief, CYF cites to “Pa.O.C. Rule 15.2(c)(1).”
CYF Brief at 47. However,
Rule 15.2 defines various terms, and does not contain subsections. See
Pa.R.O.C.P. 15.2. As CYF cites to the Rule in conjunction with In re S.C.B.,
990 A.2d at 768 (analyzing pre-rescission 15.4(c)(1)), we discern CYF relies
on pre-rescission Rule 15.4(c)(1).
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communicate with her attorney. The only other option would have
been for the TPR proceedings to be put on indefinite hold while
the [orphans’] court waited for a decision to be made in Adult
Orphans’ Court[,] which would have in turn violated [Child]’s
rights to permanency. The [o]rphans’ [c]ourt did not err in
appointing a GAL for [Mother,] and then promptly discharging the
GAL after 17 days. In applying the facts of the S.C.B. case to the
case at hand, appointing a GAL and then dismissing the GAL once
it was determined there was no need for one due to [Mother]
having competent counsel, would actually only serve to ensure
[Mother]’s rights were adequately protected. Therefore, it was
not an error[,] or at most a harmless error.
Id. at 47-48.
Upon review, In re S.C.B. appears to be the only decisional authority
touching on Mother’s first issue, albeit in dicta and in connection with a now-
rescinded Orphans’ Court Rule. In In re S.C.B., CYF petitioned for the
involuntary termination of an adult mother’s parental rights. Id. at 765.
Additionally, CYF filed a motion to appoint a GAL for mother, “based on her
mental health issues[,]” which the lower court granted on February 8, 2008.
Id. Mother retained private counsel on February 29, 2008. Id. On November
7, 2008, mother’s GAL filed a written report with the trial court. Id. The TPR
hearing occurred over six days, between February and April of 2009. Id. GAL
for mother did not attend; mother’s counsel did not object to GAL’s absence.
Id. at 765-66. The trial court ultimately granted CYF’s TPR petition, and
mother appealed, arguing, in part, that the trial court improperly allowed the
TPR hearing to proceed in the absence of mother’s GAL. Id. at 766.
The S.C.B. Court first determined that mother waived the issue. Id. at
768. Nevertheless, even had mother not waived the issue, the S.C.B. Court
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opined that “the reasoning behind” pre-recission Rule 15.4(c)(1) “is equally
persuasive when an allegedly mentally incompetent parent has adequate
representation by her own counsel. Thus, the appointment of a [GAL] is not
required in such a situation.” Id. at 769. The Court concluded:
[W]e agree with the trial court that the continued representation
of [m]other by the [GAL] was unnecessary after [m]other retained
her own private counsel[,] who adequately represented her
interests. Thus, the trial court did not commit an abuse of its
discretion in failing to require the [GAL] to appear at the hearings.
Any resultant error from the trial court’s failure to enter such an
order or to permit the [GAL] to withdraw his representation was
harmless.
Id. (footnote omitted). Significantly, the S.C.B. Court did not identify (nor
was it tasked with identifying) the authority by which the trial court could
appoint an adult mother a GAL in a TPR proceeding, apart from pre-rescission
Rule 15.4(c)(1).
Instantly, in its Rule 1925 opinion, the orphans’ court acknowledged
that,
[a]lthough Mother may meet the statutory definition of an
incapacitated person as defined under [Section] 5501, the
[orphans’ c]ourt also recognizes its jurisdictional limitations and
inability to make the all[-]encompassing legal determination of
general incapacity in another designated division of the Allegheny
County Court of Common Pleas.5 The [c]ourt has a general
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5 The Honorable David L. Spurgeon presided over both the dependency
proceedings in Allegheny County’s Family Division, and the termination
proceedings in the Orphans’ Court Division. The court explained that
“[a]lthough TPR proceedings would fall within the jurisdiction of the Orphans’
Court Division, these cases are heard by the judge in Family Division who
presided over the dependency proceeding under the ‘one judge[,] one family’
(Footnote Continued Next Page)
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obligation to safeguard the integrity of proceedings and ensure
that all parties’ rights are protected. There is no guidance on how
an arguably incapacitated parent can participate in their
termination hearing.
Orphans’ Court Opinion, 5/30/24, at 30 (emphasis in original; footnote
added).
The orphans’ court further explained why it appointed Mother a GAL,
rather than delay the TPR hearing in order for Grandmother to litigate her
guardianship petition:
Mother’s counsel … represented to the court that
[Grandmother] was in the process of filing for guardianship in the
Orphans’ Division[,] and learned that it would require at least “60
days” for the “paperwork to be generated[,]” and there was no
guarantee that [guardianship] would be granted. …
[Grandmother’s counsel] proffered to the court that
[Grandmother] filed a guardianship petition for Mother, but
[Grandmother’s counsel] anticipated it would be three to four
months before a hearing date was set in the Orphans’ Court
Division[,] and that the petition would not be resolved prior to the
TPR hearing date. [Grandmother’s counsel] also informed the
court that although there was a remedy of an emergency guardian
appointment in Orphans’ Court, [Grandmother] had not sought
such an action. …
The [c]ourt reiterated that the Child has been in CYF care
since the week of his birth[,] and there is no guarantee of when,
or if, [Grandmother]’s guardianship petition would be granted.
“[C]ourts must keep … the ticking clock of childhood ever in mind.
Children are young for a scant number of years and we have an
obligation to see [to] their healthy development quickly.” [In re
T.S.M., 71 A.3d 251, 269 (Pa. 2013)]. Upon inquiry by the court
____________________________________________
premise.” Orphans’ Court Opinion, 5/30/24, at 28 (citing 42 Pa.C.S.A. §
6351(i)(1)-(2) (“A judge who adjudicated the child dependent or who has
conducted permanency hearings or other dependency proceedings involving
the child may be assigned to the orphans’ court division for the purpose of
hearing proceedings relating to” TPR and adoption petitions)).
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as to the harm by appointing a GAL to ensure that Mother had [a]
fair proceeding, Mother’s [C]ounsel agreed that there would
be no harm if [GAL] did not contradict [Mother]’s direction
of proceeding in a contested hearing. No party at that point
had presented the court with any evidence of Mother’s alleged
incapacity other than statements made by counsel. Although
Mother had competent counsel, CYF felt another action was
needed. Th[e orphans’] court acted with foresight rather than
hindsight to ensure the rights of all were protected and a fair
hearing occurred. … At no time during the brief appointment of
GAL for Mother, was there a contradiction in Mother’s legal
direction. … [M]other was not aggrieved by the court’s
action and nothing about it affected her rights or
[C]ounsel’s representation of her. Thus, no harm or
prejudice occurred.
Orphans’ Court Opinion, 5/30/24, 31-33 (footnotes omitted; emphases
added).
The orphans’ court’s factual recitation is supported by the record.
However, upon review of the foregoing authority, we agree with Mother that
the orphans’ court erred by appointing Mother a GAL.
Rule 5.5(a)(1) permits an orphans’ court to appoint an individual a GAL
where he or she is believed to be incapacitated and “for whom no guardian
of the estate is known to have been appointed ….” Pa.R.O.C.P. 5.5(a)(1)
(emphasis added). Because Rule 5.5(a)(1) contemplates the appointment of
a GAL in matters related to an incapacitated person’s finances and property,
it is inapplicable to TPR actions; see also Pa.R.O.C.P. 15.1 (“The practice and
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procedure with respect to adoptions shall be as provided by Act of Assembly
and the Rules under this Chapter XV.” (emphasis added)).6
Even if Rule 5.5(a)(1) applied in TPR actions, however, it would not have
empowered the orphans’ court to appoint Mother a GAL under the facts of this
case. Although In re S.C.B.’s analysis was premised on pre-rescission Rule
15.4(c)(1), its reasoning would apply with equal force to Rule 5.5(a)(1)’s
proviso that a court may appoint a GAL to a person “believed to be
incapacitated” and who is not “adequately represented.” As it is uncontested
that Mother was adequately represented at the time the orphans’ court
appointed GAL, the orphans’ court lacked the authority to appoint GAL. See
In re S.C.B., 990 A.2d at 769.
Nevertheless, we agree with the orphans’ court that this error was
harmless. The sole authority Mother relies upon for her assertion that GAL’s
appointment constituted a “structural error” “that compromised the
framework of the TPR proceeding” is plainly distinguishable. Mother’s Brief at
28; see also In re L.B.M. 161 A.3d at 183 (“[T]he failure to appoint counsel
for a child involved in a contested, involuntary termination of parental rights
proceeding is a structural error and is not subject to harmless error analysis”
____________________________________________
6 We also observe that guardians are specifically limited in their decision-
making power with respect to TPR actions. See 20 Pa.C.S.A. § 5521(f)(2)
(stating a guardian to an incapacitated person is not permitted to consent “to
the relinquishment of the person’s parental rights.”).
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(emphasis added)). Just as the erroneous appointment of a GAL to a parent
in In re S.C.B. constituted harmless error, the same is clearly true in the
instant case.
Here, Counsel conceded that appointing Mother a GAL would cause her
no harm, provided the GAL did not contradict Mother’s desire to proceed with
a contested TPR hearing. See N.T., 3/20/24, at 13 (Counsel stating, “it
doesn’t seem like there would be any harm if there were a GAL appointed”).
At the TPR hearing, GAL offered no opinion, and deferred to Counsel. See
N.T., 4/11/24, at 10-11. Accordingly, the orphans’ court’s error caused
Mother no prejudice and was harmless. Mother’s first issue merits no relief.7
In her second issue, Mother claims the orphans’ court erred by
“considering Mother’s current physical condition when such condition was not
identified or alleged” in the Agency’s TPR petition. Mother’s Brief at 7. In her
half-page argument, Mother claims “[t]he record contained no competent
evidence for the [orphans’] court to determine the specific nature or duration
of any alleged physical incapacity of Mother.” Id. at 26. Mother continues,
“[t]he record is also clear that Mother’s physical condition was neither a reason
____________________________________________
7 Even were we permitted to treat the non-precedential decision Mother relies
upon as persuasive authority, it contradicts Mother’s claim that the
appointment of a GAL cannot be harmless error. See In re J.L.P., 215 A.3d
627 (Pa. Super. 2019) (unpublished memorandum at 11) (“Because [m]other
had counsel to represent her interests, and because she was an adult, we
agree that the court erred by appointing a GAL. Nonetheless, it is clear that
the court’s error was harmless.”).
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why [Child] was removed and placed in care, nor a basis pleaded by CYF to
establish a finding of repeated incapacity of Mother.” Id. at 27 (citation
omitted).
Preliminarily, we consider whether Mother has preserved this issue. In
its Rule 1925 opinion, the orphans’ court opines “Mother’s failure to object
resulted in waiver of this issue.” Orphans’ Court Opinion, 5/30/24, at 26.
Mother counters that she “clearly preserved this issue during final argument
with the [orphans’] court.” Mother’s Brief at 27 (citing N.T., 4/11/24, at 116).
Because the record confirms that Mother failed to lodge an objection, we agree
with the orphans’ court that Mother waived her second issue. See Interest
of S.K.L.R., 256 A.3d 1108, 1124 (Pa. 2021) (“[T]o preserve a claim that
evidence was admitted in error, the offended party must timely object to the
admissibility of the evidence and state a specific ground for the objection.”
(citations omitted)).
However, even if Mother had preserved her challenge with a timely
objection, it would afford her no relief.
We review questions concerning the admissibility of evidence under the
following standard:
[T]he decision of whether to admit or exclude evidence is within
the sound discretion of the orphans’ court. A reviewing court will
not disturb these rulings absent an abuse of discretion. Discretion
is abused if, inter alia, the orphans’ court overrides or misapplies
the law.
In re A.J.R.-H., 188 A.3d 1157, 1166-67 (Pa. 2018) (citations omitted).
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“All relevant evidence is admissible, except as otherwise provided by
law.” Pa.R.E. 402. “The well-settled test for relevancy states that evidence
is relevant if ‘(a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in
determining the action.’” Interest of S.K.L.R., 256 A.3d at 1124 (quoting
Pa.R.E. 401). In a TPR proceeding, the orphans’ court, as fact-finder, “should
assign that evidence the appropriate weight to which it is entitled in reaching
its factual and legal conclusions.” Id.
The content of a petition to involuntarily terminate parental rights is
governed by 23 Pa.C.S.A. § 2512 and Orphans’ Court Rule 15.10. Pursuant
to Section 2512, “[t]he petition shall set forth specifically those grounds and
facts alleged as the basis for terminating parental rights.” 23 Pa.C.S.A. §
2512(b). Moreover, Rule 15.10 provides, in pertinent part:
(a) Petition. A petition for involuntary termination of parental
rights under 23 Pa.C.S.[A.] §§ 2511-2512 shall contain the
following averments:
***
(10) a reference to the applicable subsection(s) of 23
Pa.C.S.[A.] § 2511(a) providing the ground(s) for termination
and specific facts to support terminating the parental rights
of the subject birth parent pursuant to the subsection(s)
referenced[.]
Pa.R.O.C.P. 15.10(a)(10).
It is undisputed that CYF did not plead additional facts after Mother
suffered a debilitating brain injury. However, Counsel was clearly aware of
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Mother’s condition prior to the April 11, 2024, TPR hearing. See N.T.,
2/14/24, at 25 (Counsel stating Mother “meets the definition of incapacitated
persons under [Section] 5510, Title 20.”); Motion to Appoint GAL, 1/4/24, at
1 (unpaginated) (CYF averring Mother was “currently hospitalized and in a
coma”). Pursuant to Orphans’ Court Rule 1.2(b), the Orphans’ Court Rules
shall be liberally construed to secure the just, timely and efficient
determination of every action or proceeding to which they are
applicable. The court at every stage of any action or proceeding
may disregard any error or defect of procedure that does not
affect the substantive rights to the parties in interest.
Pa.R.O.C.P. 1.2(b).
Upon review, we conclude the orphans’ court did not abuse its discretion
by considering evidence of Mother’s physical condition. Counsel was aware of
Mother’s condition, and Mother suffered no harm as a result of CYF’s failure
to amend its original TPR petition. Accordingly, if preserved, Mother’s second
issue would merit no relief.8
Mother next argues the orphans’ court improperly terminated her
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1). Mother’s Brief at 18.
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis:
____________________________________________
8 Mother’s second claim would also fail because the orphans’ court “did not
rely on Mother’s current physical incapacity during the [Section] 2511(a)
analysis[,] as there was overwhelming evidence to support termination.”
Orphans’ Court Opinion, 5/30/24, at 27; see also id. at 27-28 (the orphans’
court detailing evidence of Mother’s inability to satisfy parental duties and
responsibilities).
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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
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. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
Matter of Adoption of L.C.J.W., 311 A.3d 41, 48 (Pa. Super. 2024) (citation
omitted). “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.” In re Adoption of C.L.G., 956 A.2d 999, 1004
(Pa. Super. 2008) (en banc) (citation omitted). Finally, this Court need only
agree with the orphans’ court as to “any one subsection of [Section] 2511(a),
in addition to [Section] 2511(b), in order to affirm the termination of parental
rights.” Int. of M.E., 283 A.3d 820, 830 (Pa. Super. 2022) (citation omitted).
Instantly, we examine Mother’s challenge pursuant to Section
2511(a)(1), which 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:
(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.
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23 Pa.C.S.A. § 2511(a)(1).
To satisfy Section 2511(a)(1), the petitioner “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.” In re Adoption of B.G.S., 245 A.3d 700, 706-07 (Pa. Super. 2021)
(citation omitted); see also In re Adoption of Charles E.D.M., 708 A.2d
88, 91 (Pa. 1998) (“Section 2511[(a)(1)] does not require that the parent
demonstrate both a settled purpose of relinquishing parental claim to a child
and refusal or failure to perform parental duties.” (citation omitted; emphasis
in original)).
In applying Section 2511(a)(1),
[t]he court should consider the entire background of the case and
not simply … mechanically apply the six-month statutory
provision. The court must examine the individual circumstances
of each case and consider all explanations offered by the parent
facing termination of h[er] parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re Adoption of A.C., 162 A.3d 1123, 1129 (Pa. Super. 2017) (citations
and paragraph break omitted). However, the General Assembly’s emphasis
on the six months immediately preceding the filing of the petition indicates
the timeframe is the “most critical period for evaluation” of a parent’s conduct.
In re Adoption of L.A.K., 265 A.3d 580, 592 (Pa. 2021).
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Regarding the definition of “parental duties,” our Supreme Court has
explained:
Our courts long have interpreted parental duties in relation to the
needs of a child, such as love, protection, guidance and support.
Parental duties are carried out through affirmative actions that
develop and maintain the parent-child relationship. The roster of
such positive actions undoubtedly includes communication and
association. The performance of parental duties requires that a
parent exert [herself] to take and maintain a place of importance
in a child’s life. Fortitude is required, as a parent must act with
“reasonable firmness” to overcome obstacles that stand in
the way of preserving a parent-child relationship and may
not wait for a more suitable time to perform parental
responsibilities.
Id. (citations, some quotation marks, and brackets omitted; emphasis
added).
Mother asserts “[t]he record is clear that Mother made repeated
attempts to not only address her [parenting] goals through entering
treatment[,] but also by seeking visitation with [Child].” Mother’s Brief at 21.
Mother asserts “it was the fault of the system[,] and not Mother[,] that visits
had not occurred while Mother was incarcerated.” Id.Conversely, the orphans’ court cogently summarized its findings with
respect to Section 2511(a)(1) as follows:
[F]rom the time of Child’s birth to the [] TPR hearing, Mother did
nothing substantial to address her drug use. [Ms.] Johnson
testified credibly about Mother’s unwillingness to address her
substance abuse disorder. [N.T., 4/11/24, at 44-45.] At the onset
of this case, Mother was provided the opportunity of a referral [for
drug and alcohol treatment], which Mother never completed. [Id.
at 36.]
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Mother failed to complete any substance abuse treatment
program that she claimed to have attended. In fact, the [orphans’
c]ourt heard testimony that in early September 2022,
[Grandmother] informed CYF that Mother had been arrested and
was being sent to a rehabilitation facility. Less than one month
later, CYF observed Mother panhandling in the City of Pittsburgh[,]
and [she] appeared to be under the influence. [Id. at 37].
Mother’s substance [ab]use intensified when she was not
incarcerated. In November 2023, Mother was briefly in a
rehabilitation facility in Wilkinsburg, PA, to receive treatment, and
was found lying unconscious in the street. She has yet to recover,
physically, and is now living in a skilled nursing facility. …
….
… Mother could not secure and maintain housing. CYF
presented credible testimony that Mother was either homeless or
incarcerated during the lifetime of his case. [Id. at 46.] Housing
is essential for a child’s stability and development.
… Mother failed to have regular and consistent visits with
Child. The [orphans’ c]ourt was presented with credible testimony
… that Mother had only one visit with Child in the twenty-two
months Child has been in care. [Id. at 47.] Any effort by Mother
to arrange visitation only occurred during Mother’s incarceration
or rehabilitation stays. When Mother was at liberty in the
community, she did not attempt to arrange or attend any
visitations. … Mother chose not to visit [C]hild when there were
no obstacles, including [while C]hild remained in the hospital
withdrawing from being born drug positive.
… Mother did not participate in her goal of mental health
treatment. Mother was ordered at the shelter care hearings to
have a mental health assessment, [of] which she did not avail
herself. The record demonstrates that CYF was never able to
make a referral for the appropriate level of mental health
treatment for Mother because she was either “incarcerated or
absent.” [Id. at 74.] No evidence was presented that
contradicted this assertion.
…. Mother did not remedy the conditions that brought Child
into CYF’s care and custody. No meaningful actions were taken
by Mother to remedy such conditions. The evidence presented
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clearly established the persistent and continued nature of the
issues that have caused Mother to be unable to provide essential
care for the Child. Given the fact that the Child has been in [the]
care of CYF for twenty-two months, the [orphans’ c]ourt justifiably
concluded that Mother will not remedy the problems that have
made her incapable of functioning as the Child’s parent.
Orphans’ Court Opinion, 5/30/24, at 15-18 (footnotes omitted).
Our review confirms the orphans’ court’s findings are supported by the
record, and free of legal error. Thus, we discern no error in the orphans’
court’s finding that Mother failed to perform parental duties for at least six
months prior to CYF’s filing of the TPR petition. See S.P., 47 A.3d at 827 (“an
appellate court 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.”). Mother’s challenge to
termination of her parental rights of Child, under Section 2511(a), is without
merit.9
In her final issue, Mother challenges termination of her parental rights
under 23 Pa.C.S.A. § 2511(b). When the orphans’ court finds grounds for
termination under Section 2511(a), it must separately consider a child’s needs
and welfare:
(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
____________________________________________
9 Because we agree with the orphans’ court that CYF met its burden with
respect to Section 2511(a)(1), we need not address Mother’s issues four
through six. See Int. of M.E., 283 A.3d at 830.
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environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. ….
23 Pa.C.S.A. § 2511(b).
“Notably, courts should consider the matter from the child’s perspective,
placing [their] developmental, physical, and emotional needs and welfare
above concerns for the parent.” K.T., 296 A.3d at 1105. Courts 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, “the parental bond is but one part of the overall
subsection (b) analysis.” Id. at 1113.
The Section 2511(b) inquiry must also include consideration
of other important factors such as: the child’s need for
permanency and length of time in foster care …; whether the child
is in a preadoptive home and bonded with foster parents; and
whether the foster home meets the child’s developmental,
physical, and emotional needs, including intangible needs of love,
comfort, security, safety, and stability.
Id. (footnote and citations omitted).
Here, the orphans’ court explained its rationale for concluding
termination was in Child’s best interests:
In making its decision to terminate Mother’s parental rights,
the [orphans’ c]ourt heavily relied on Dr. [] Pepe’s expert report
and the conclusions contained therein[,] as well as other
witnesses[,] including … [Ms.] Johnson and … [Ms.] Marshall. ….
The [C]hild was placed with foster parents when he was
released from the hospital approximately one week after his birth.
[CYF Exhibit 6 at 4.] The Child’s 12-year-old [half-]sister[,] as
well as [C]hild’s 11-year-old biological brother[,] are in [the same]
foster home. [N.T., 4/11/24, at 78.] Child receives love and
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affection in the pre-adoptive home. [Id. at 84; see also CYF
Exhibit 6 at 3.] [Foster parents] reside in a five-bedroom home.
[Foster father] has three sons[] who are adults and out of the
home, and [foster mother] has two [adult] daughters. [CYF
Exhibit 6 at 3.] [Foster parents] are gainfully employed. [Foster
mother] is a banker[,] and [foster father] is an [information
technology] director. [Id.]
[Ms.] Johnson and [Ms.] Marshall credibly testified about
their firsthand observations between Child and foster parents.
[Ms. Johnson and Ms. Marshall] testified that they had no concerns
about the foster parents, as they meet all of [Child’s]
developmental and medical needs. [N.T., 4/11/24, at 85; id. at
98.] The [C]hild was current with medical care[,] and foster
parents have assumed all the responsibilities for medical care for
the [C]hild. [Id. at 98-99.]
….
The court adopted the opinion of Dr. Pepe that the Child
“exhibited multiple bonding behaviors suggestive of a positive and
primary attachment towards his foster parents.” [CYF Exhibit 6
at 4.] [Dr. Pepe] further remarked that the foster family
presented as a “very positive permanent resource for [Child].”
[Id.]
Child has been out of Mother’s care since the week of his
birth, and[,] because Mother has only had one virtual visit during
the life of the case[,] there was no evidence presented that a bond
existed with Mother. …. Mother continued to place her own needs
and desires above those of [C]hild. When Mother was living in the
community, she did not avail herself of visitation nor services to
allow her to serve a parental role. Mother has never demonstrated
that she could provide [C]hild with safety, security and stability.
Mother’s substance abuse has remained and worsened to the point
of her incapacity. The evidence presented demonstrated that
Mother is no longer able to care for herself and requires 24-hour
care. Mother is physically incapable of meeting the needs and
welfare of a small toddler.
Orphans’ Court Opinion, 5/30/24, at 21-24.
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We agree with the reasoning and determination of the orphans’ court,
as it is supported by the record and free of legal error. S.P., 47 A.3d 817,
826-27. The orphans’ court acted within its discretion when it credited Dr.
Pepe’s report and the testimony of Ms. Johnson and Ms. Marshall. Id.; see
also L.C.J.W., 311 A.3d at 48 (“It is the province of the orphans’ court to
assess credibility and resolve any conflicts in the evidence, and in doing so it
is free to believe all, part, or none of the evidence presented.” (citation and
quotation marks omitted)). Accordingly, Mother is entitled no relief, and we
affirm the order terminating Mother’s parental rights.
Order affirmed.
DATE: 11/6/2024
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