In Re: T.S., E.S., minors, Appeal of: T.H.-H.
In Re: T.S., E.S., minors, Appeal of: T.H.-H. No. 364 WDA 2017
Pa. Super. Ct.Aug 25, 2017Background
- Mother (T.H.-H.) used marijuana while pregnant and after birth; CYF became involved after youngest child E.S. born in Aug. 2014.
- In-home services were provided but Mother continued marijuana use, admitted smoking around the children, and demonstrated minimal parenting skills.
- Emergency Custody Authorization issued July 2, 2015; children adjudicated dependent July 14, 2015, and placed in foster care Sept. 15, 2015, where they remained.
- CYF filed petitions to involuntarily terminate parental rights (Mother and Father) on Nov. 9, 2016.
- Trial court terminated Mother’s parental rights under 23 Pa.C.S. § 2511(a)(2), (5), (8) and (b) on Feb. 3, 2017; Mother appealed only the § 2511(b) determination and later raised (for first time on appeal) a challenge under In re L.B.M. about appointment of independent counsel for the children.
- Trial court found (inter alia) Mother failed to progress toward reunification, did not prioritize visits, the children were largely indifferent to Mother, and termination served the children’s needs and welfare.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to appoint independent counsel for the children (separate from GAL) was structural error requiring remand | Mother: L.B.M. requires appointment of independent counsel in contested involuntary termination; failure is structural error | CYF/GAL: GAL may serve as counsel unless child’s legal and best interests conflict; no conflict here | Court: Followed In re D.L.B.; no remand because no conflict shown and panel bound by precedent allowing GAL to represent child |
| Whether termination meets § 2511(b) (children’s needs and welfare) | Mother: Trial court focused on her faults, failed to consider effect of termination on the children | CYF: Evidence showed lack of bond, Mother’s inability to progress, insufficient visitation/parenting; termination serves children’s needs | Court: Affirmed termination under § 2511(b); competent evidence supported findings that severance was in children’s developmental, physical, emotional interests |
Key Cases Cited
- In re L.B.M., 161 A.3d 172 (Pa. 2017) (Supreme Court held failure to appoint counsel for children in contested termination can be structural error)
- In re L.M., 923 A.2d 505 (Pa. Super. 2007) (standard of review and deference to trial court in termination appeals)
- In re C.M.S., 884 A.2d 1284 (Pa. Super. 2005) (§ 2511(b) requires consideration of love, comfort, security, stability)
- In re C.S., 761 A.2d 1197 (Pa. Super. 2000) (court must consider existence and strength of parent–child bond)
- In re E.M., 620 A.2d 481 (Pa. 1993) (existence of emotional bond alone does not preclude termination)
- In re K.Z.S., 946 A.2d 753 (Pa. Super. 2008) (where no evidence of bond exists, inference of no bond is reasonable)