In re A.M.T.

1

IN RE: ADOPTION OF: A.M.T., A MINOR APPEAL OF: C.L.T., FATHER

No. 937 WDA 2024

No. J-A26045-24

Superior Court of Pennsylvania

November 14, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered March 28, 2024 In the Court of Common Pleas of Butler County Orphans' Court No. 44 of 2023

BEFORE: BOWES, J., BECK, J., and BENDER, P.J.E.

MEMORANDUM

BENDER, P.J.E.

C.L.T (Father) appeals from the order granting the petition of the Butler County Office of Children and Youth (Agency) and terminating his parental rights to A.M.T (Child).^[1] We affirm.

Background

Child was born in August 2015 and was six years old when the court held the termination hearing. The court recounted the following facts:

Mother was not married at the time of Child's birth. Father was present during Mother's pregnancy, but was incarcerated three months prior to Child's birth. Father was released from incarceration for approximately one year between 2018 and 2019. During this time period, Father made phone calls to Mother inquiring about Child, but he never spoke with Child or saw Child. Father made no attempts to obtain custody through the legal system.

On November 22, 2019, Father was sentenced on multiple criminal offenses stemming from a May 31, 2019 incident. Father has continuously remained incarcerated on these offenses and has an anticipated release date in June of 2025. …

Child was initially detained on January 22, 2022, after it was reported to [the Agency] that Mother had been admitted to Butler Memorial Hospital psychiatric unit on a mental health commitment. No relatives were available to provide continued care for Child. It was reported that Father was incarcerated at the time. The only information that Mother could provide as to Father's whereabouts was that he was incarcerated somewhere in Pennsylvania.

An adjudication hearing was held on January 24, 2022, following which the [c]ourt found Child to be without proper care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals.

Trial Court Opinion (TCO I), 3/28/24, at 2-3.

Shortly after the trial court adjudicated Child dependent, the Agency caseworker, Rachel Wetick, located Father at SCI Huntingdon. Id. at 3. The court explained:

Father participated in the April 7, 2022 family team meeting and [was] actively involved in the dependency proceedings thereafter. In Child's Permanency Plan, Father was tasked with (1) enrolling in programs available to him through his incarceration that would aid in him being reunified with Child; (2) remaining in contact with Child through sending letters, cards, pictures, etc.; and (3) [meeting] with [the Agency] caseworker upon his release from incarceration.

To his credit, Father completed a twelve-week parenting class at SCI Huntingdon and enrolled in counseling at the prison. Father initially sent letters to Child. … Father's letters ceased upon the initiation of supervised therapeutic visitation with Child.

As Father had never met Child, and Child was unaware of who his father was, it was determined that any visitation should be therapeutic in nature to build a relationship. Due to restrictions within SCI Huntingdon, it took some time to have video visitation approved. Father's first visit occurred by video on October 2, 2022. Due to limitations established by SCI Huntingdon, visits were forty-five (45) minutes in duration and occurred every other week.

While some visits went well, with Child engaging with Father, in many visits Child preferred to engage in solo play, and complained that the visits were too long and that he was bored. Child would often act out following the video visitation and, therefore, visitation was coordinated to occur on the same day that Child met with his therapist.

Out of a total twenty-six (26) scheduled visits, twenty-one (21) visits took place. On three (3) occasions, Child appeared for the visit, [which] did not occur due to Father [or the prison] being in lockdown.

Id. at 3-4.

On August 25, 2023, the Agency petitioned to terminate Father's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). The trial court scheduled a hearing for January 12, 2024. On December 7, 2023,

with a termination hearing scheduled for the following month and Father having missed two (2) consecutive visits, the … request [of Child's counsel] to discontinue visitation was approved by the [c]ourt with the consent of all parties.

As Father's contact with Child throughout Child's entire life was limited to the twenty-one (21) video visits which were forty-five (45) minutes in length, wherein Child's engagement with Father was inconsistent at best, no bonding assessment was conducted. Any bond between Father and Child [wa]s minimal to nonexistent. The two had never met in person until the day of the termination hearing[,] and the entirety of contact they had with one another throughout Child's life was limited to fifteen (15) hours and forty-five (45) minutes of video visitation, of which Child was largely disengaged and complained of the length and lack of interest in said visits.

Id. at 4-5.

The January 12, 2024 hearing was continued due to difficulty securing Father's appearance from prison. As a result, the trial court entered an order directing that Father be transported from SCI Huntington to Butler County. Order, 1/29/24. The termination hearing was held on March 1, 2024. On March 28, 2024, the trial court entered an order and accompanying opinion terminating Father's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). With the trial court's permission, Father appealed nunc pro tunc.^[2]

Father presents the following two issues for review:

I. Did the lower court abuse its discretion, and err as a matter of law[,] as the … Agency failed to present clear and convincing evidence supporting termination of parental rights?

II. Did the lower court err in determining it is in the Child's best interest to terminate Father's parental rights?

Father's Brief at 7.

Waiver

We first address the trial court's contention that Father waived his issues because his concise statement fails to identify "the specific reason" the trial court "erred in finding clear and convincing evidence to support termination." TCO II at 2.

Father raises in his concise statement the same two issues he raises in his brief. See Concise Statement of Matters Complained of on Appeal, 8/1/24; Father's Brief at 7. Our Supreme Court has explained:

The purpose of a Rule 1925(b) statement is to facilitate appellate review and to provide the parties and the public with the legal basis for a judicial decision. To this end Rule 1925(b)(4)(ii) provides that the Rule 1925(b) statement "shall concisely identify each error that the appellant intends to assert with sufficient detail to identify the issue to be raised for the judge." Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). Highlighting this need for conciseness, Rule 1925(b)(4)(iv) indicates that the Rule 1925(b) statement "should not be redundant or provide lengthy explanations as to any error." Pa.R.A.P. 1925(b)(4)(iv). On the other hand, the Rule 1925(b) statement cannot be "too concise," as it must properly specify the errors to be addressed on appeal. … Pursuant to Rule 1925(b)(5)(vii), "[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived."

To ensure that a Rule 1925(b) statement is both concise but also sufficiently detailed to identify all of the issues desired to be raised on appeal, Rule 1925(b)(4)(v) provides that "[e]ach error identified in the Statement will be deemed to include every subsidiary issue that was raised in the trial court[.]" Pa.R.A.P. 1925(b)(4)(v) (emphasis added).

Commonwealth v. Price, 284 A.3d 165, 170 (Pa. 2022) (some citations omitted). To be a "subsidiary issue,"

the unstated issue must be "included" within the stated issue. Whether the unstated issue is fairly "included" within the stated issue depends in substantial part upon the interrelationship between the two issues - i.e., whether resolution of the stated issue may depend, in whole or in part, upon the resolution of the unstated issue. In other words, the question is whether resolution of the two issues is sufficiently connected to each other such that the resolution of one may depend in some respect upon resolution of the other. This interrelationship typically occurs when the unstated issue is an element of, or important to, the broader stated issue.

Id. at 170-71 (footnote omitted).

Here, the two issues in Father's concise statement have an "interrelationship" and are "sufficiently connected" to the "subsidiary issues" he argues in his brief. See Father's Brief at 12-25 (arguing the trial court erroneously found clear and convincing evidence to support termination under 23 Pa.C.S. § 2511(a) and (b)).

In addition, the trial court advocates for waiver, but alternatively relies on "the reasons as stated" in its opinion accompanying the termination order. See TCO II at 2; TCO I at 8-16; see also Commonwealth v. Arnold, 284 A.3d 1262, 1269 n.9 (Pa. Super. 2022) (rejecting trial court's claim that appellant failed to preserve issue with specificity pursuant to Rule 1925(b), where "the court's alternative analysis on the merits demonstrates that it was well-aware of the nature and scope" of the argument); Commonwealth v. Smyser, 195 A.3d 912, 916 (Pa. Super. 2018) (declining to find waiver where trial court "readily apprehended" the issue).

Waiver is not required "in cases in which our ability to effectuate meaningful appellate review is not hindered." Commonwealth...