IN THE INTEREST OF: A.N.P., A MINOR APPEAL OF: E.C.G., MOTHER
from the Order Entered March 16, 2016 In the Court of Common
Pleas of Philadelphia County Family Court at No(s):
BEFORE: PANELLA, SHOGAN, and PLATT [*] , JJ.
("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. We vacate and
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.
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.
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.
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
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
Mother's Brief at 5.
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),  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
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). 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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
Q. And you had a chance to review all those documents and
become familiar with the case, correct?
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,
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
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
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
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
MR. CAPALDI: Okay.
BY MR. CAPALDI:
Q. First off, are the [R.s] -- is this a ...