J-A08030-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: J.N.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.M.C., FATHER :
:
:
:
: No. 3164 EDA 2019
Appeal from the Order Entered October 8, 2019,
in the Court of Common Pleas of Montgomery County,
Orphans' Court at No(s): No. 2019-A0011.
BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 11, 2020
In this matter, Appellant J.M.C. (Father) appeals the order involuntarily
terminating his rights to 3-year-old daughter J.N.C. (Child), pursuant to the
Adoption Act.1 See 23 Pa.C.S.A. § 2511(a)(2), (8) and (b). After careful
review, we affirm.
The relevant factual and procedural history is as follows: The family
came to the attention of the Montgomery County Office of Children and Youth
(OCY) around March 2016 due to concerns about Mother’s mental health and
substance abuse. In May 2016, Mother suffered a psychotic episode and was
involuntarily committed; at the time of her commitment, Father was
incarcerated on a parole violation.
____________________________________________
1The orphans’ court also terminated the rights of S.D. (Mother), who did not
appeal.
J-A08030-20
In June 2016, the court adjudicated Child dependent. Initially, OCY and
the court pursued kindship care. Maternal great-grandparents were
considered a resource, but the maternal great-grandmother notified OCY that
their age and health prohibited them from caring for the infant Child. Father
sought to advance a kinship placement with the paternal aunt, however, this
was not an option because the paternal aunt lived in Georgia. Moreover,
Father could not be a placement resource. Father lived with paternal
grandmother, paternal-stepfather, and paternal uncle in a two-bedroom
home. The paternal grandparents each occupied a bedroom; the uncle lived
in the basement; and Father slept on the couch. Father also suffered from
physical and mental health ailments, most of which stem from a traumatic
brain injury he received in a car accident when he was 17. Thus, the court
placed Child in foster care.
OCY instituted a family service plan to aid in the reunification of the
family. Father’s goals were: 1) to maintain a safe living environment; 2)
address mental health needs; 3) maintain positive coping skills; 4)
demonstrate positive parenting skills; 5) address developmental delays; 6)
meet basic needs; 7) be a law-abiding citizen; and 8) meet financial needs for
daily living.
By the April 2017 permanency review hearing, the court determined
Father made substantial progress toward alleviating the circumstances that
led to Child’s placement. He complied with his probation officer; he completed
-2-
J-A08030-20
parenting classes; attended anger-management-focused therapy; and visited
Child regularly. However, he had be unable to achieve stable housing.
From there, Father’s progress plateaued. In December 2017, the court
determined that Father had not completed a neurological examination, nor
had he provided documentation of doctor appointments. The court found
further that Father drank heavily and attended Mother’s unsupervised visits
with Child even though he had been instructed not to; this was a concern
because the court found there were multiple domestic disputes between the
parents. Father had not attended Child’s medical appointments, and he had
not taken drug and alcohol screens. Father still had not achieved stable
housing.
During the ensuing permanency hearings, the court determined Father’s
compliance was either moderate or minimal. Tensions also arose between
Father and the foster family. While Father would comply with some OCY
directives, including visitation, he made no progress toward achieving either
housing or financial stability. Thus, Child was still in need of her foster care
placement. On January 30, 2019, OCY filed a petition to terminate Father’s
rights. In February 2019, Father requested that the paternal aunt be
considered an adoption resource, which the court denied. According to Father,
the aunt was never considered because she lived in Georgia. Tragically, on
May 20, 2019, Mother overdosed. Although she survived, she suffered
catastrophic brain damage.
-3-
J-A08030-20
The court held the termination hearing over the course of two dates:
October 1 and October 4, 2019. Child was appointed counsel, Attorney Craig
Bluestein, pursuant to 23 Pa.C.S.A. § 2313(a). Attorney Bluestein
represented Child’s interests alone during the first day of the hearing.
However, on the second day of the hearing, Attorney Bluestein appeared with
co-counsel Attorney Laura Kash, who was Child’s guardian ad litem (GAL)
during the underlying dependency case. Attorneys Bluestein and Kash
averred to the orphans’ court that Child, though only three years old, was able
to verbalize that her preferred outcome was to stay with the foster family.
Thus, the attorneys submitted that simultaneous representation of Child’s best
interests and legal interests was permissible under Section 2313(a), and the
orphans’ court agreed. The court determined OCY met its burden and
terminated Father’s rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), (8) and (b).
Father presents this timely-filed appeal.
In the Statement of Questions Involved section of his Brief, Father lists
10 issues for our review:
1. Whether the court committed an error of law, or an
abuse of discretion, in refusing to permit [Father] to
inquire of [Child’s GAL] about the circumstances of her
October 3, 2019, interview of [Child], regarding
[Child’s] preferred outcome, after [Father] raised the
issue of the foster-parents’ bias?
2. Whether the court committed an error of law, or an
abuse of discretion, in refusing to permit [father] to
testify to the foster parents’ lack of contact with him,
after [Father] raised the issue of the foster parents’
bias?
-4-
J-A08030-20
3. Whether the court committed an error of law, or an
abuse of discretion, in refusing to consider the bias of
the foster parents’ and their recitation of events,
baseless accusations against [Father], and continuing
disparaging remarks against the abilities of the
[Father] to raise [Child]?
4. Whether the court committed an error of law, or an
abuse of discretion, by terminating [Father’s] parental
rights solely on the basis of [Father’s] environmental
factors, which are beyond his control as a result of a
traumatic brain injury in violation of 23 Pa.C.S.A. §
2511(b)?
5. Whether the court committed an error of law, or an
abuse of discretion, in refusing to consider [OCY’s]
failure to pursue [Father’s] blood family, as a potential
resource?
6. Whether the court committed an error of law, or an
abuse of discretion, in refusing to consider [OCY’s]
failure to pursue [Father’s] family as a concurrent
option to reunification with [Mother]?
7. Whether the court committed an error of law, or an
abuse of discretion, in refusing to consider [Father’s]
family as a resource after the change in circumstance
caused by [Mother’s] overdose?
8. Whether the court committed an error of law, or an
abuse of discretion, in [OCY’s] refusal to consider
[Father] as a reunification resource, despite
[Mother’s] ongoing police contact, failure to address
mental health concerns, and continued substance
abuse issues?
9. Whether the court committed an error of law, or an
abuse of discretion, in refusing to consider how OCY’s
continued pursuance of [Mother] as the reunification
resource despite [Mother’s] ongoing police contact,
failure to address mental health concerns, and
continued substance abuse issues, lengthened
[Child’s] time in foster care?
10. Whether the court committed an error of law, or an
abuse of discretion, by not requiring [Child’s GAL] to
-5-
J-A08030-20
provide information sufficient for the court to believe
that [Child] understood the purpose and impact of
[Child’s] statements?
Father’s Brief at 4-7.
To begin our discussion, we must first address which issues Father has
preserved for our review. We observe Father voluntarily withdrew his second,
third, and seventh issues. Even though he listed these issues in his Statement
of Questions Involved section of his Brief, Father indicated in the Argument
section that he would not pursue them. However, there are other issues
where we must find waiver.
Father filed one notice of appeal from one docket – the orphans’ court
termination docket;2 he did not appeal from the juvenile court order on the
dependency docket. This is problematic, because several of Father’s appellate
issues involve juvenile court determinations made during Child’s dependency
case. Specifically, whether the OCY employed sufficient reunification efforts
and whether juvenile court should have placed Child in kinship care (i.e., with
Father’s family) were questions that the juvenile court had to determine
during the dependency case. These were not decisions the orphans’ court
could make during the termination hearing. See In re B.L.W., 843 A.2d 380,
384 n.1 (Pa. Super. 2004) (en banc) (Holding that the focus of a termination
proceeding is on the parents’ conduct, and the adequacy of the agency’s
reunification efforts is not a valid consideration.) Notably, the juvenile court’s
____________________________________________
2 Typically, this docket is referred to as the adoption docket.
-6-
J-A08030-20
denial of Father’s request for kinship care was not a final, appealable order
until the orphans’ court made its termination decision. See In Interest of
N.M., 186 A.3d 998, 1008 (Pa. Super. 2018). In that sense, Father’s present
appeal of these specific dependency issues would have been timely. However,
in order for these dependency issues to be properly before us, Father would
have had to have filed a separate notice of appeal from the dependency
docket. See Pa.R.A.P. 341(a); see also Commonwealth v. Walker, 185
A.3d 969, 977 (Pa. 2018) (“[T]he proper practice under [Pa.R.A.P.] 341(a) is
to file separate appeals from an order that resolves issues arising on more
than one docket.”).
In In the Interest of K.M.W., --- A.3d ---, 2020 PA Super 200, (Pa.
Super. August 18, 2020), an en banc panel of this Court overlooked the bright-
line rule in Walker when a parent filed only one notice of appeal, but listed
both the dependency and termination docket numbers. Notwithstanding the
fact that the parent filed one notice of appeal from two dockets, we considered
the merits of both appeals. Here, however, we decline to extend this
exception to situations like this, where the parent only appealed from the
termination docket. A parent cannot raise dependency issues in a termination
appeal when no appeal from the dependency case was taken. See K.M.W.,
2020 PA Super 200, at *6 (citing Commonwealth v. Johnson, --- A.3d --,
(Pa. Super. 2020) (en banc) (holding that the bright-line rule in Walker
requires an appellant to file a separate notice of appeal for each lower court
docket the appellant is challenging)). Because Father did not appeal the
-7-
J-A08030-20
dependency order, we have no jurisdiction to address any of his dependency
issues, including whether the juvenile court erred in denying Father’s request
for kinship placement during the dependency case.3 As such, Father’s fifth,
sixth, eighth, and ninth issues are waived.
Unfortunately, our waiver analysis does not end there. Father’s first and
tenth issues both concern the court’s decision to allow simultaneous
representation of Child’s best interests and legal interests.4 See generally
Father’s Brief at 27-36, 59-61.
____________________________________________
3 We note, however, that the goal throughout the dependency case was
reunification with both parents, even if there was a concurrent goal of
adoption. Placing Child with Father’s relative in Georgia would have severely
impacted OCY’s ability to reunify Child with Mother, let alone Father.
Reunification with Mother was an entirely valid objective, given the fact that
she did not suffer her debilitating brain injury until the 11 th hour of the
dependency case, and by that time, Child had resided with the foster family
for nearly three years – virtually her entire life. See generally Trial Court
Opinion (T.C.O.), 11/26/19, at 5-6.
4 Section 2313(a) of the Adoption Act requires the orphans’ court to appoint
an attorney to represent the child in cases concerning the involuntary
termination of parental rights. See 23 Pa.C.S.A. § 2313(a). In In re
Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017), our Supreme Court
interpreted Section 2313(a) to mean that the child’s attorney had to represent
the child’s legal interests, i.e., the child’s preferred outcome. The High Court
further held that if the child had been appointed a guardian ad litem (GAL) –
typically, a holdover from the underlying dependency case – the GAL may not
simultaneously represent the child’s legal interests and best interests if those
interests conflict.
-8-
J-A08030-20
On the second day of the termination hearing, Attorney Kash appeared
with Attorney Bluestein.5 Attorney Kash explained to the court that she was
able to discern that the three-year-old Child’s preferred outcome, i.e. Child’s
legal interests, was to stay with the foster family. Attorney Kash then detailed
her meeting with Child. Initially, Child indicated that she did not want “this
home to be her forever home.” See N.T., 10/3/19 (Day 2), at 8. Attorney
Kash explained that after more follow-up questions, she understood that Child
was confused. The foster family had told Child they might move. Therefore,
Child took the “forever home” question literally; Child did not wish to reside
in the house without her foster family, but rather she wished to reside with
the foster family in the new house. Id. Attorney Kash also inquired about a
picture Child made for a pre-school project. The project instructed Child bring
a picture of her home and family; Child identified the foster home as her
family. Id. at 10. Attorney Kash asked if Child wished to have continuing
contact with either of her birth parents. Child wished to see her Mother when
she got better – an impossibility, given Mother’s grievous injury – but Child
stated she did not enjoy visits with Father. Id. at 12. Child explained that
____________________________________________
5 Apparently, Attorney Bluestein represented Child by himself during the first
day of the hearing, because until Attorney Kash met with Child between the
first and second court date, it seemed Child was too young to verbalize a
preferred outcome. In such cases, the Child’s counsel could proceed to
represent Child’s best interests under Section 2313(a). See In re T.S., 192
A.3d 1080, 1090 (Pa. 2018). But on October 3, 2019, Attorney Kash met with
Child, who presented herself more clearly since starting pre-school. After
concluding that Child had a stated preference, Attorney Kash appeared with
Attorney Bluestein on the second day of the termination hearing to convey
this preference to the court.
-9-
J-A08030-20
Father was “annoying” and that he yells. Upon the court’s probing, Attorney
Kash represented that, while Child is too young to appreciate the legal
terminology, Child was still able to give a clear direction about her desired
outcome: termination. Id. at 11.
At this point, the court permitted Father’s counsel to ask follow-up
questions. Father asked where the meeting between Child and Attorney Kash
took place and who was present. When those questions were answered,
Father’s counsel asked how long the visit took, at which time Attorney
Bluestein objected on the grounds that Father’s inquiry was running afoul of
the attorney-client privilege. See id. at 13-14. Attorney Bluestein presented
case law, and court then held a brief discussion about the propriety of Father’s
inquiry. Father’s counsel explained that the purpose of the inquiry was less
about the conversation Child had with Attorney Kash, and more about the
effect the foster family had on Child while the conversation took place. See
id. at 15. In any event, Father’s counsel stated that she would need time to
review those cases.
Critically, the court did not rule on Attorney Bluestein’s objection. The
court stated it shared Attorney Bluestein’s concerns about privilege, but that
it also sympathized with Father’s argument. Without ruling, the court
proposed that the parties revisit the issue after the lunch recess so as to allow
Father’s counsel time to review the case law. Father’s counsel agreed, but as
far as we can tell, Father’s counsel decided to not raise raised the issue again
after recess. Therefore, we must conclude that Father failed to preserve this
- 10 -
J-A08030-20
issue. See Pa.R.A.P. 302 (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”); see also In re Adoption
of K.M.G., 219 A.3d 662, 669 (Pa. Super. 2019) (en banc) (The Superior
Court may not sua sponte raise the issue of dual representation where the
appellant-mother failed to object.). The orphans’ court never made a definitive
ruling but allowed Child’s co-counsel to proceed with dual representation.
Father did not object to the court’s procedure, nor did Father attempt to re-
examine Attorney Kash further. Instead, Father effectively conceded the
point.
Even if we were to consider these issues, we observe they are without
merit. Father seems to misconstrue the purpose of Attorney Kash’s averments
about Child’s preference. The purpose of these averments is to ensure that
representation is proper under Section 2313(a) – that there is no conflict
between what a child wants and what is best for the child. In his Brief, Father
doubts whether the three-year-old Child has the word “annoying” in her
vocabulary, and he raises the prospect that Child was coached by the foster
family. See Father’s Brief at 33-34. Father submits further that Child’s alleged
statement that she does not like visits with her Father appears to conflict with
other testimony that Child enjoyed visits with Father. Id. at 34-35. Likewise,
Father states that he wished to investigate Child’s purported confusion about
the meaning of a “forever home.” Id. at 61. Perhaps more to the point, Father
argues that he could not investigate whether Attorney Kash explained to Child
that Child would never see Father again if his rights were terminated. Id.
- 11 -
J-A08030-20
Surely some investigation into a child’s preferred outcome is
appropriate, especially when the child is on the cusp of “verbalization,” as
delineated in In re T.S., supra. However, Father’s inquiry was not aimed at
discerning whether there was an actual or potential conflict between Child’s
best interests and legal interests, and Father did not attempt to disqualify
Child’s simultaneous representation. See L.B.M., 161 A.3d at 184 (“[T]he
propriety of permitting the same individual to serve in both capacities should
be determined on a case-by-case basis, subject to the familiar and well-settled
conflict of interest analysis.”) (Saylor J., concurring). Instead, Father sought
to advance the theory that the foster family soured the relationship between
Father and Child.
Supposing Child’s preferred outcome merely parroted the foster family’s
preference, we fail to see how the same affects Child’s representation. When
the child is capable of verbalizing a preferred outcome, Section 2313(a)
mandates that a child’s counsel represents what the child wishes to happen
without regard to why the child desires what they do, or even whether what
the child wants is in the child’s best interests. Here, Father seems to argue
Child’s preference should be discounted because she was too young to
understand that she would never see Father again, or in the alternative, Child
was strong-armed by the foster family. If either of these hypotheticals were
true, then Child’s position would be unknowable, at which point Child’s
attorneys would have been free to advocate solely for Child’s best interests:
- 12 -
J-A08030-20
termination. Thus, even if we did not find waiver of Father’s first and tenth
issues, we would have concluded that these issues lacked merit.
Between those issues Father has waived and those Father has
withdrawn, only one issue remains:
4. Whether the court committed an error of law, or an
abuse of discretion, by terminating [Father’s] parental
rights solely on the basis of [Father’s] environmental
factors, which are beyond his control as a result of a
traumatic brain injury in violation of 23 Pa.C.S.A. §
2511(b)?
See Father’s Brief at 5.
We begin our discussion mindful of our well-settled standard of review
in termination cases:
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 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 and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
- 13 -
J-A08030-20
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[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
In this case, the court terminated Father’s parental rights pursuant to
subsections 2511(a)(2), (8), and (b). Father does not challenge the trial
court’s conclusions that termination was warranted under Section 2511(a),
thereby conceding the first prong of the termination analysis. Rather, he
focuses his appeal on the second prong under Section 2511(b). This section
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. [….]
23 Pa.C.S.A. § 2511(b) (emphasis added).
In the context of the Section 2511(b) analysis, “the court must take into
account whether a bond exists between child and parent, and whether
termination would destroy an existing, necessary and beneficial
relationship.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). The court
is not required to use expert testimony, and social workers and caseworkers
- 14 -
J-A08030-20
may offer evaluations as well. Id. Still, the ultimate concern is the needs and
welfare of a child.
We have explained:
Before granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love,
comfort, security, and closeness—entailed in a parent-child
relationship, as well as the tangible dimension. Continuity of
the relationships is also important to a child, for whom
severance of close parental ties is usually extremely painful.
The trial court, in considering what situation would best
serve the child's needs and welfare, must examine the
status of the natural parental bond to consider whether
terminating the natural parent's rights would destroy
something in existence that is necessary and beneficial.
Matter of M.P., 204 A.3d 976, 984 (Pa. Super. 2019) (citing Z.P., 994 A.2d
at 1121). Lastly, where there is no evidence of a bond between the parent
and child, it is reasonable to infer that no bond exists. See M.P., 204 A.3d at
984 (citing In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)).
Here, Father argues the court erred, because it terminated his rights
based on environmental factors. Father suffered a traumatic brain injury,
resulting from an automobile accident when he was 17. By Father’s own
admission, he experiences significant effects from the injury. He has difficulty
reading and comprehending. On account of the injury and his bi-polar
diagnosis, Father receives a fixed income. He lives with the paternal
grandparents and paternal uncle in a two-bedroom home – Father sleeps on
the couch. Consequently, the court determined his home to be unsuitable for
the Child. See Father’s Brief at 42. Importantly, Father never offered himself
- 15 -
J-A08030-20
as a placement option. Father reasons that these are environmental factors
that should be cast aside.
Father concedes other aspects of the Section 2511(b) analysis favor
termination, but Father attributes this to OCY’s mismanagement of the
dependency case. For instance, Father achieved unsupervised visits only
briefly, but the visits were switched back to supervised after Child experienced
diaper rash. See id. at 43. Father blames the rash on something the foster
parents did or did not do. Although the expert evaluator determined that the
parental bond between Child and Father was attenuated, Father blames the
lack of a bond on OCY. See id. at 46-47. He reasons that Child was removed
from Mother, as a result of Mother’s behavior. He also contends that his
bond was attenuated with Child, because OCY allowed Child to languish in
foster care for over 30 months as OCY sought reunification with Mother.
According to Father, OCY should have considered the out-of-state placement
with paternal aunt. See id. at 46-48.
We disagree. First, Father does not benefit from the fact that Mother
had to care for Child by herself prior to Child’s removal. Even though OCY
removed Child from Mother’s home, and even though Father was incarcerated
at the time, Child was removed from both parent’s legal care. Second, we fail
to see how a bond between Child and Father would have been less attenuated
had Mother achieved reunification, or if the court allowed Child to move to
Georgia with the paternal aunt. Finally, to Father’s primary contention about
environmental factors, Father misreads Section 2511(b). A parent’s rights
- 16 -
J-A08030-20
may not be terminated solely on the basis of environmental factors. See 23
Pa.C.S.A. § 2511(b) (emphasis added). Father’s inability to achieve housing
and his inability to achieve financial stability beyond his fixed income could be
construed as environmental factors. That does not mean they are irrelevant
to the termination analysis. But this case is not about environmental factors.
Rather, it is about Father’s incapacity. Father’s limitations simply prevent him
from meeting the needs and welfare of Child. Consequently, Child had to
spend years in foster care. Termination best serves Child’s interests, because
the same allows her to achieve permanency with the only caregivers she has
essentially ever known. We acknowledge the orphans’ court finding that
Father loves Child. However, “[a] parent’s own feelings of love and affection
alone, do not prevent termination of parental rights.” Z.P., 994 A.2d at 1121
(citation omitted).
To conclude: Father waived or withdrew all of his appellate issues with
the exception of his challenge to the court’s determination under Section
2511(b). Upon our review, we conclude the orphans’ court did not abuse its
discretion or commit an error of law. Father’s rights were not terminated
based solely on environmental factors. Termination best serves Child’s needs
and welfare.
Order affirmed.
- 17 -
J-A08030-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/20
- 18 -