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In re K.T.E.L.

October 21, 2009

IN RE: K.T.E.L. APPELLEE
APPEAL OF: A.R., MOTHER



Appeal from the Decree entered February 18, 2009, in the Court of Common Pleas of Philadelphia County, December Term No. 90016, D 7157-05-12, J 324009-03.

The opinion of the court was delivered by: Kelly, J.

BEFORE: STEVENS, KELLY, and POPOVICH, JJ.

OPINION

¶ 1 A.R. (Mother) appeals from the decree entered in the Philadelphia County Court of Common Pleas of Philadelphia, involuntarily terminating her parental rights to her child, K.T.E.L., born October 28, 2003. We affirm. In this case, we address an issue of first impression: the disposition of an appeal in which an appellant in a case involving termination of parental rights fails to comply with Pennsylvania Rules of Appellate Procedure 905(a)(2) and 1925(a)(2), both adopted January 13, 2009. We hold that henceforth, in all children's fast track cases, the failure to file a concise statement of errors complained of on appeal with the notice of appeal will result in a defective notice of appeal, to be disposed of on a case by case basis.

¶ 2 Preliminarily, we address Mother's concise statement of errors complained of on appeal in light of the amendments to Rule 905 and 1925, adopted January 13, 2009 to be "effective as to appeals filed 60 days or more" thereafter. See Pa.R.A.P. 905, history; 1925, history. The amendments included new sub-sections applicable only to children's fast track cases. Rule 905(a)(2) provides in pertinent part: "If the appeal is a children's fast track appeal, the concise statement of errors complained of on appeal as described in Rule 1925(a)(2) shall be filed with the notice of appeal and served in accordance with Rule 1925(b)(1)." Pa.R.A.P. 905(a)(2) (emphasis added). Rule 1925(a)(2)(i) states: "The concise statement of errors complained of on appeal shall be filed and served with the notice of appeal as required by Rule 905. See Pa.R.A.P. 905(a)(2)." Pa.R.A.P. 1925(a)(2)(i) (emphasis added).

¶ 3 While both rules require the contemporaneous filing of a notice of appeal and concise statement, there are no provisions defining the effect on the appellant's appeal of the failure to comply. We find however, that rule 905(a)(2) is procedural, not jurisdictional; therefore, we are not divested of our jurisdiction by non-compliance. Instead, we find that failure to comply with rule 905(a)(2) will result in a defective notice of appeal.

¶ 4 Rule 902 states in part:

Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken.

Pa.R.A.P. 902; see also Commonwealth v. Alaouie, 837 A.2d 1190, 1192 n.2 (Pa. Super. 2003). This Court has stated, "The extreme action of dismissal should be imposed by an appellate court sparingly, and clearly would be inappropriate when there has been substantial compliance with the rules and when the party [moving for quashal of the appeal] has suffered no prejudice." Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980). Accordingly, as there is no per se rule requiring quashal or dismissal of a defective notice of appeal, we hold that in the instant case and henceforth, the failure of an appellant in a children's fast track case to file contemporaneously a concise statement with the notice of appeal pursuant to rules 905(a)(2) and 1925(a)(2), will result in a defective notice of appeal. The disposition of the defective notice of appeal will then be decided on a case by case basis under the guidelines set forth in Stout, supra.*fn1

¶ 5 The instant appeal is a children's fast track case. See Pa.R.A.P. 102. Rules 905(a)(2) and 1925(a)(2) were effective March 16th,*fn2 and Mother filed her notice of appeal the following day. Mother did not file her concise statement contemporaneously as required under the amendment, but rather, three days after the notice of appeal. Neither the Philadelphia Department of Human Services (DHS) nor the child advocate in this case raised any objection. In addition, the record reflects that Mother has complied with all other procedural requirements pertaining to her appeal. Because the filing of the concise statement three days after the notice of appeal does not prejudice the other parties in this case, and in light of the presumed purpose of the new amendments-to expedite the disposition of children's fast track cases-we decline to quash or dismiss the instant appeal.

¶ 6 When K.T.E.L. was two years old and residing with a family friend, Mother executed a voluntary placement agreement. (N.T. Termination Hearing, 2/17/09, at 26). The child was adjudicated dependent on January 9, 2006, and Mother was ordered to participate in a drug screen and assessment through the Court Evaluation Unit (CEU), and to have bi-weekly supervised visitation with the child. Mother's family service plan objectives were to visit the child, complete parenting and education programs and obtain suitable housing, stabilized mental health, stable employment, and financial stability. (Id., at 10).

¶ 7 At a permanency hearing on June 8, 2006, testimony revealed that Mother had tested positive for barbiturates and had not followed through with the CEU, nor with another agency enlisted to assist her.*fn3 At the March 5, 2007 permanency review hearing, the court found that Mother was not complying with the plan objectives pertaining to mental health, parenting, employment, and housing, but was consistent with visitation. At a May 15, 2008 hearing, however, the court found that she had not regularly visited with K.T.E.L., but was participating in drug, alcohol, and mental health services.

¶ 8 On June 23, 2008, the court held a hearing on petitions filed by (DHS) to terminate the parental rights of Mother and the child's father. The court granted the petition as to the father, but denied the petition without prejudice as it pertained to Mother.*fn4

ΒΆ 9 At a permanency hearing held on November 4, 2008, the trial court found that Mother was not complying with her plan goals, had failed to sign releases of information, was not permitting DHS to monitor her mental health treatment or inspect her home, and had only visited with ...


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