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In re A.N.P.

Superior Court of Pennsylvania

January 30, 2017

IN THE INTEREST OF: A.N.P., A MINOR APPEAL OF: E.C.G., MOTHER

         Appeal from the Order Entered March 16, 2016 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000804-2015

          BEFORE: PANELLA, SHOGAN, and PLATT [*] , JJ.

          OPINION

          SHOGAN, J.

         E.C.G. ("Mother") appeals from the decree and order dated and entered on March 16, 2016, granting the petition filed by the Philadelphia County Department of Human Services ("DHS" or the "Agency"), seeking to involuntarily terminate her parental rights to her dependent, minor child, A.N.P., a daughter born in January of 2012 ("Child"), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), and to change Child's permanency goal from reunification to adoption under the Juvenile Act, 42 Pa.C.S. § 6351.[1] We vacate and remand.

         The trial court set forth the factual and procedural background of this appeal in its opinion filed pursuant to Pa.R.A.P. 1925(a) on May 16, 2016, which we incorporate herein. Trial Court Opinion, 5/16/16, at 1-5. Notably, Child was born prematurely at six months gestation, and, as a result, has had numerous special needs, including a gastrointestinal ("GI") feeding tube for more than four years. Id. On March 20, 2013, the trial court adjudicated Child dependent and placed her in the legal and physical custody of DHS.

         On November 6, 2015, DHS filed a petition for the termination of Mother's parental rights and for a change in Child's permanency goal from return to parent or guardian to adoption. On March 16, 2016, the trial court held a hearing on the termination and goal-change petitions. At the hearing, the trial court admitted the entire dependency record regarding Child as DHS Exhibit 2, and a summary of Child's medical records as DHS Exhibit 3. N.T., 3/16/16, at 7-8. DHS first presented the testimony of the Community Umbrella Agency ("CUA") caseworker, Torshia Admiral. N.T., 3/16/16, at 9. During the re-cross examination of Ms. Admiral by Mother's counsel, Attorney John Capaldi, Mother left the courtroom, claiming she felt ill, and the trial court excused her. Id. at 36. Her counsel requested a five-minute recess, which the trial court denied, and the testimony concluded. Id. at 37. The trial court ruled that Mother had waived her right to present her own testimony by leaving the courtroom without leave of court, and it refused to allow her counsel to present her testimony on direct examination to refute the evidence against her. Id. at 40-42. Although Mother attempted to re-enter the courtroom, the trial court refused her reentry and rendered its decision on the petitions without hearing Mother's testimony, over the objection of Mother's counsel. Id. at 42-45.

         In the decree and order dated and entered on March 16, 2016, the trial court granted the involuntary termination petition pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), and the petition to change Child's permanency goal to adoption under 42 Pa.C.S. § 6351.

         On April 15, 2016, Mother timely filed a notice of appeal and concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

On appeal, Mother raises three issues, as follows:
1. Whether the trial court erred in refusing [Mother] to participate in the hearing and testify and provide evidence on her own behalf when she returned to the courtroom after briefly removing herself due to physical illness and emotional upset?
2. Whether the trial court's ruling to involuntarily terminate [Mother's] parental rights to her daughter, A.N.P., was not supported by clear and convincing evidence establishing grounds for involuntary termination?
3. Whether the trial court's decision to change A.N.P.'s permanency goal from reunification to adoption was not supported by clear and convincing evidence that such decision would best protect the child's needs and welfare?

Mother's Brief at 5.

         In her first issue, Mother argues that the trial court egregiously erred and significantly abused its judicial discretion when it denied Mother an opportunity to participate, testify, and present evidence on her own behalf after Mother claimed to be ill and left the courtroom. Mother's Brief at 15. Mother recounts that the judge became angry because Mother left her courtroom without asking permission when Mother stated that she felt sick. Mother argues that the trial court, in refusing to allow her to testify or even re-enter the courtroom and be a participant in the termination proceedings, violated her constitutional guarantee to due process. Mother alleges that this violation of her constitutional due-process guarantee, which is included in the statutory scheme of the Adoption Act, particularly 23 Pa.C.S. § 2503(b)(1), [2] and the Juvenile Act, 42 Pa.C.S. §§ 6337 and 6338, was a fundamental deprivation of her right to testify on her own behalf and participate in the proceedings. Mother's Brief at 19-23. Mother states that the trial court's ruling was especially egregious because, after initially excusing Mother, the trial court then extinguished Mother's parental rights to Child and changed the permanency goal for Child to adoption without hearing from Mother. Mother asserts that the trial court improperly denied her counsel's reasonable request for a brief recess in order to check on the health of his client and, in the alternative, for a continuance. Mother argues that the trial court's preclusion of her from the courtroom effectively allowed DHS to present its case unopposed, without her presence or participation, and eliminated the possibility of the court's receipt of contrary testimony and evidence by Mother that would weigh on the court's very important ruling. Mother asserts that, at no time prior in the three-year history of this case, had she ever applied for or been granted a continuance in this matter. Accordingly, Mother contends that the trial court's unreasonable conduct denied her a fair and impartial hearing.

         Mother then raises her second and third issues in the alternative. In her second issue, Mother contends that the trial court's termination decree is not supported by clear and convincing, competent evidence under 23 Pa.C.S. §§ 2511(a)(1) and (8).[3] Mother's Brief at 15-16. Mother complains that the evidence DHS presented at the hearing failed to establish any parental objective plan that Mother had substantially failed to meet or would prohibit reunification of Child with her. In her third, alternative issue, Mother argues that the record does not demonstrate the trial court gave primary consideration to the developmental, physical, and emotional needs and welfare of Child under 23 Pa.C.S. § 2511(b). Id. at 16. Mother alleges that DHS presented only superfluous and minimal evidence at the hearing with regard to whether the termination of her parental rights would meet the best interests and developmental, physical, and emotional needs and welfare of Child.

         Initially, we will address Mother's first issue. We note, however, that all of her issues are interrelated and require our review of the entire transcript for the events that transpired at the termination and goal-change proceeding.

         At the hearing, Ms. Admiral testified that Child was currently residing in a medical foster care home with the R.s, who had been certified as caregivers through Bethanna, a community program. N.T., 3/16/16, at 9. Child was doing extremely well in the R.s' home and was attending pre-school at Good Shepherd three times a week. Id. Previously, Child had attended Pediatria Specialty, a medical daycare facility, until the week prior to the hearing, March 10, 2016, when her GI feeding tube was removed. Id. At the time of the hearing, Child was receiving speech therapy, physical therapy, occupational therapy, and specialized instruction at the pre-school. Id. Child's foster parents took her to therapy at St. Christopher's Hospital and to her medical appointments. Id. at 9-10. Child consistently attended the therapy appointments and her medical appointments. Id. at 10. Child's foster parents took her to her pediatrician and her gastrointestinal specialist at least three times a month. Id. At the time of the hearing, Child was four years old. Id. She was current in her medical care, and she was receiving the services required for her special needs. Id. Ms. Admiral last saw Child in her foster care home on the date of the hearing; she found that Child appeared to be safe and that all of her needs were being met. Id. at 11. Ms. Admiral testified on direct examination and cross-examination that the R.s are a pre-adoptive home for Child. Id.

         On cross-examination by Mother's counsel, Ms. Admiral testified that, since Child's GI tube had been removed, she would not need to be seen as frequently by her physicians. N.T., 3/16/16, at 12. She also testified that Child has weekly supervised visits with Mother. Id.

         On re-direct examination, Ms. Admiral testified that this case first came to DHS with a General Protective Services ("GPS") report made on February 18, 2013. Having been born premature at twenty-five weeks, Child was diagnosed with intestinal failure, chronic respiratory disease, and sleep apnea, and she was developmentally delayed. N.T., 3/16/16, at 12- 13. At that time, Child was residing at St. Christopher's Hospital, where she remained for one year. Id. Child was then sent to a medical facility, Pediatria Specialty, for one year. Id. Child was placed with the R.s in September of 2014. Id.

         Ms. Admiral further testified that, while Child was initially in St. Christopher's Hospital, DHS received a report that Mother was not visiting Child regularly, at times going ten days without visiting Child in the hospital. N.T., 3/16/16, at 13-14. When Mother threatened to take Child from the hospital, DHS obtained an Order of Protective Custody ("OPC"). Id. at 14. While Child was in the hospital with her extreme medical needs, DHS offered Mother medical training for those needs. Id. Mother completed only one day of the three training sessions offered. Id. Mother was inattentive and unfocused, instead of learning how to care for Child properly. Id.

         When Mother did not adequately complete the training sessions, the hospital requested that DHS obtain an OPC for Child to be removed from Mother's care on an ongoing basis. N.T., 3/16/16, at 15. Ms. Admiral was assigned to this case in January of 2015. Id. When the case initially came to DHS, DHS established Single Case Plan ("SCP") or Family Service Plan ("FSP") objectives for Mother. Id. at 16. Those objectives were for Mother to attend the Clinical Evaluation Unit ("CEU") forthwith. Id. Mother was to complete drug treatment and mental health treatment; to attend domestic violence counseling; to be consistent with visitation; and to provide documentation for any reason she canceled visits. Id. Mother also had objectives with respect to medical training and attending Child's medical appointments. Id. When Ms. Admiral was assigned to the case, Mother had not completed any of those objectives, nor had Mother completed them at the time of the termination/goal change hearing. Id. at 16-17.

         Upon her assignment to the case, Ms. Admiral reviewed Mother's objectives with her regularly; they were the original objectives established for Mother. N.T., 3/16/16, at 17. Since the inception of the case, DHS consistently invited Mother to participate in SCP meetings, which were held every three months. Id. at 17-18. Mother participated in only one SCP meeting; that meeting was held after Ms. Admiral assumed the case and after the birth of Mother's son in August of 2015. Id. at 18-19.

         Prior to Ms. Admiral's involvement, DHS offered Mother three supervised visits per week with Child. However, because of her inconsistencies in visitation, visits were changed to once a week beginning in November of 2014. N.T., 3/16/16, at 18-19. After Ms. Admiral assumed the case, DHS offered Mother weekly, supervised visits with Child every Friday, and Mother was aware of the visitation arrangement offered. Id.

         Since January of 2015, Mother's visits with Child have continued to be inconsistent, with Mother often missing at least one visit a month, and sometimes two visits per month. N.T., 3/16/16, at 19. The month of

         August of 2015, after Mother gave birth to her son, was the only month that Mother attended every scheduled visit. Id. In speaking with Ms. Admiral, Mother did not inform Ms. Admiral that she was pregnant, nor was Ms. Admiral otherwise aware of that fact until after Mother had given birth to a son. Id. at 19-20.

         From the time Ms. Admiral acquired the case in January of 2015 until the termination petition was filed in November of 2015, Mother had attended twenty-two of the possible forty visits offered her. N.T., 3/16/16, at 20. Mother had never fully complied with the visitation arrangement since Child came into care. Id.

         Mother was aware of Child's medical conditions for the duration of the case, and she has been aware of when and where Child's appointments occurred, because she had attended appointments at St. Christopher's Hospital. N.T., 3/16/16, at 20-21. Child attends her appointments only at St. Christopher's Hospital. Id. at 21. Ms. Admiral notifies Mother of upcoming appointments. Id. Mother has the phone number of the foster parents, and she is able to call and receive updates from them. Id.

         Mother's attendance at Child's medical appointments has remained inconsistent. Id. at 22. Mother attended three of eight appointments between August of 2015 and March of 2016, but she left one appointment early before Child was seen. Id. Prior to August of 2015, Mother did not attend Child's medical appointments, and she attended only two out of approximately twenty doctor's appointments from the period of January of 2015 to August of 2015. Id.

         When Child was at Pediatria Specialty, Mother was offered medical training to learn how to care for Child, but she never completed that training. N.T., 3/16/16, at 23. When Child was at St. Christopher's Hospital, Mother was also offered medical training, but again she did not complete it. Id. Moreover, Bethanna offered Mother medical training, but she did not participate. Id. Mother has not completed training to care for Child's medical needs. Id. Mother never expressed to Ms. Admiral her desire to be trained to care for Child's medical needs. Id. Mother did not disclose to Ms. Admiral that she had any health complications that would have prevented her from attending visits or training. Id. Mother was not incarcerated while Ms. Admiral was assigned the case. Id. at 24. Ms. Admiral believes that, without her assistance or reminders from the foster parent, Mother would be unable to manage Child's medical appointments. Id.

         Mother has not completed any drug and alcohol treatment. N.T., 3/16/16, at 24. Mother was participating in the Sobriety Through Outpatient ("STOP") intensive outpatient program; however, based on the information from Community Behavioral Health ("CBH"), Mother stopped attending on November 25, 2015. Id. at 24-25. Mother was supposed to attend three times per week, twelve sessions per month, and she was enrolled over a four-month period. Id. at 25. Mother attended twelve out of forty-eight sessions with STOP as of November 25, 2015. Id.

         Ms. Admiral testified that Mother never completed a course of mental health treatment, but she was participating in treatment at John F. Kennedy Center. N.T., 3/16/16, at 26. Prior to the filing of the termination/goal change petition, Mother was not receiving any mental health services, although mental health was an objective for her from the outset of the case. Id. Mother never completed court-ordered services through Achieving Reunification Center ("ARC"), and she was discharged for being inactive. Id. Mother did not complete parenting classes. Id. Mother was directed to obtain employment services through ARC, but she had not been employed since Ms. Admiral assumed the case. Id. at 26-27. Ms. Admiral testified that Mother has not completed any of her objectives. Id. at 27.

         Ms. Admiral opined that a permanency goal change to adoption was in Child's best interest because Child has improved greatly, developmentally and medically, as a result of the foster parents' commitment to her. N.T., 3/16/16, at 27. Child looks to the foster parents to meet her basic needs. Id. Ms. Admiral testified that Child's GI tube is now removed because the foster parents have been encouraging Child to eat solid food. Id.

         Ms. Admiral stated that Child is gaining weight and is doing very well. Id. The foster parents have taken Child to all of her appointments, and Child has not required hospitalization since being in their care. Id.

         Ms. Admiral stated that the visits between Mother and Child are supervised and that there is good interaction between Mother and Child. N.T., 3/16/16, at 28. Ms. Admiral gave as an example that Mother does Child's hair during the visits. Id. Ms. Admiral testified that Child looks at Mother the same way as she looks at Ms. Admiral, as an individual she sees regularly. Ms. Admiral opined that, to Child, there is no difference between Mother being Child's mother and Ms. Admiral being Child's case manager. Id.

         With regard to Child's interaction with the foster parents, Ms. Admiral testified there is a bond between Child and the foster parents, based on her observation of their interaction at the foster parents' home. N.T., 3/16/16, at 29. Each time Ms. Admiral is at the home of the foster parents, Child has many toys around her, and the foster parents interact well with Child. Id. Child is always looking to the foster parents for hugs and kisses. Id. She seeks the foster parents to meet her basic needs, and they are able to do so. Id. Ms. Admiral has observed a positive attachment between Child and the foster parents, which indicates a fuller, more affectionate relationship and bond than Child's interaction with Mother. Id. Ms. Admiral testified the foster parents are ensuring that Child attends her medical appointments and therapeutic services and receives the care that she needs. Id. at 30. Ms. Admiral believes that Child would not suffer any adverse effects from the termination of Mother's parental rights. Id. at 29.

         Subsequently, the Child Advocate, Attorney Fegan, conducted re-cross examination of Ms. Admiral. Ms. Admiral testified that Child is currently undergoing physical therapy, speech therapy, and occupational therapy once per week. N.T., 3/16/16, at 30. Ms. Admiral explained that Child is functioning at the level of an eighteen-month-old child, as she has speech delays. Id. at 31. Ms. Admiral also testified that the R.s spend a significant amount of time on a daily basis helping Child overcome her disabilities. Id. at 32.

         Mother's counsel then conducted re-cross examination of Ms. Admiral. During the questioning by Mother's counsel, Mr. Capaldi, the following exchange took place:

Q. As you mentioned, Ms. Admiral, you were not the original worker, correct? You came on in -
THE COURT: She already stated that four times, January, 2015.
MR. CAPALDI: January, 2015, correct.
BY MR. CAPALDI:
Q. When you came onto the case there was already a case file for this, correct?
A. Yes.
Q. And you had a chance to review all those documents and become familiar with the case, correct?
A. Yes.
Q. Okay. So you're aware that prior to being placed with the [R.s] that [Child] had experienced a burn incident in a prior foster home where she had severely burned her hand, right?
A. No, I'm not (inaudible)
Q. You're not aware of this?
[DHS Attorney] MR. WISE: Objection to relevance.
THE COURT: Yes, where's the relevance?
MR. CAPALDI: Well the relevance will be, Your Honor, my client - there's been testimony that my client, at that time of placement and thereafter was belligerent at times and things.
THE COURT: I didn't hear belligerent.
MR. CAPALDI: Well maybe that's the wrong word.
THE COURT: Let me tell you what I heard. Let me tell you what I heard.
MR. CAPALDI: Okay.
THE COURT: I heard out of 40 visits she only made 22 visits. That's what I heard. I heard that out of eight medical visits she only made two. Let's talk about that. We sent her to CE U.She was at STOP out of 48 visits she only made 12. Speak to that. Don't bring up any other investigations, allegations or what happened to this child in foster care because I'm dealing with the [R.s] who are a pre-adoptive resource.
MR. CAPALDI: Okay.
THE COURT: So this is your time to [trumpet] the wonderful things about your client because I need to make a decision and I'm not going to get into the weeds on this case. So let's go.
MR. CAPALDI: Okay.
BY MR. CAPALDI:
Q. First off, are the [R.s] -- is this a ...

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