In re Interest of A.N.P.

155 A.3d 55

IN the INTEREST OF: A.N.P., a Minor

Appeal of: E.C.G., Mother

No. 1188 EDA 2016

Superior Court of Pennsylvania.

Argued October 25, 2016.

FILED JANUARY 30, 2017

John J. Capaldi, Philadelphia, for appellant.

Cynthia N. Keller, Philadelphia, for appellee.

BEFORE: PANELLA, SHOGAN, and PLATT^* , JJ.

OPINION BY 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 reenter 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 preschool 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...