In the Int. of: A.P. Appeal of: A.S.
1334 MDA 2016
| Pa. Super. Ct. | Nov 22, 2016Background
- Child (born Oct. 2013) was adjudicated dependent on Aug. 15, 2014 after mother (A.S.) overdosed on heroin and was arrested; Agency obtained custody.
- Child initially placed with a foster home, then with father; father proved unstable and child was placed with pre-adoptive foster parents (E.H.) on Dec. 19, 2014 and has remained there.
- Mother remained incarcerated or in a halfway house much of the time; after release she had limited, supervised visits in Aug–Oct 2015, then absconded from the halfway house and was re-incarcerated; she was recently paroled before the termination hearing and did not communicate with the Agency.
- Agency filed involuntary TPR petition on Mar. 18, 2016 under 23 Pa.C.S. § 2511(a)(2), (5), and (8); hearing held Jun. 23, 2016; mother did not appear but was represented by counsel.
- Trial court entered decree nisi terminating mother’s parental rights on Jun. 23, 2016; decree became final July 3, 2016; mother appealed but her concise statement under Pa.R.A.P. 1925(a)(2)(i) was filed late.
- Superior Court concluded late filing did not waive appellate review but remanded because the trial court’s decree lacked the required specific factual findings and statutory analysis under § 2511(a) and (b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supported involuntary termination of mother’s parental rights under 23 Pa.C.S. § 2511 | Agency: mother failed to remedy conditions, was absent/unavailable, child in placement >12 months, termination is in child’s best interests | Mother: evidence insufficient; she made efforts/progress toward reunification and alleviating placement conditions | Remanded — trial court failed to state findings, identify which § 2511(a) grounds applied, or analyze § 2511(b); Superior Court retained jurisdiction and ordered the trial court to issue a detailed Rule 1925(a) opinion |
| Whether late filing of Pa.R.A.P. 1925(a)(2)(i) concise statement waived appellate issues | Agency/trial court: failure to timely file results in waiver | Mother: late filing should not forfeit right to appeal; counsel’s delay may be ineffective assistance | Held: Late filing did not mandate waiver; court relied on In re J.T. and related precedent to avoid per se waiver and to protect the parent’s right to effective counsel |
| Whether trial court complied with required procedures in termination proceedings | Agency: procedures complied with (per trial court’s brief decree) | Mother: trial court’s decree lacked full discursive findings and statutory analysis | Held: Trial court did not comply with requirement to make specific factual findings and legal analysis; remand ordered for proper findings under § 2511(a) and (b) |
| Whether appeal should proceed or be dismissed for procedural defects | Trial court: appellant waived issues by not filing concise statement with notice | Mother: procedural defect should not defeat appeal in TPR context | Held: Appeal allowed to proceed; trial court to file Rule 1925(a) opinion within 10 days; Superior Court retained jurisdiction for prompt resolution |
Key Cases Cited
- In re J.T., 983 A.2d 771 (Pa. Super. 2009) (late filing of Rule 1925 statement in TPR case does not automatically waive appellate issues; consider counsel ineffectiveness and fundamental fairness)
- In re Adoption of R.I., 312 A.2d 601 (Pa. 1973) (parents in TPR proceedings have a constitutional right to counsel and effective assistance in civil termination cases)
- In re K.P., 872 A.2d 1227 (Pa. Super. 2005) (appellate court’s broad scope of review requires trial court to make full discursive findings in TPR cases)
- In re Adoption of G.L.L., 124 A.3d 344 (Pa. Super. 2015) (standard of review and burden of proof — clear and convincing evidence — in involuntary TPR proceedings)
- Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (Rule 1925(b) and waiver principles in appellate procedure)
- Commonwealth v. Butler, 812 A.2d 631 (Pa. 2002) (application of Rule 1925 waiver and its automatic effect)
- Commonwealth v. Burton, 971 A.2d 428 (Pa. Super. 2009) (late filing of statement can reflect per se ineffectiveness of counsel; relief may be remand for nunc pro tunc filing)