J-S50014-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: B.M.J.P. A/K/A B.P., A MINOR

APPEAL OF: L.P., BIOLOGICAL

MOTHER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 466 WDA 2019

Appeal from the Order Entered August 14, 2018

In the Court of Common Pleas of Allegheny County Orphans' Court at

No(s): CP-02-AP-0000021-2018

IN RE: B.M.J.P. A/K/A B.P., A MINOR

APPEAL OF: ALLEGHENY COUNTY

OFFICE OF CHILDREN, YOUTH AND

FAMILIES (CYF)

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 515 WDA 2019

Appeal from the Order Entered March 13, 2019

In the Court of Common Pleas of Allegheny County Orphans' Court at

No(s): CP-02-AP-0000021-2018

BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.* MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 27, 2019

L.P. (Mother) appeals nunc pro tunc from the trial court’s August 14,

2018 order involuntarily terminating her parental rights to her minor son,

B.M.J.P. (Child) (born 10/14), and Allegheny County Office of Children, Youth

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* Retired Senior Judge assigned to the Superior Court.
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and Families (CYF) cross-appeals1from the trial court’s order granting

Mother’s petition for permission to appeal nunc pro tunc. After careful review,

we affirm. In March 2016, CYF received a report that there had been a domestic

dispute between Mother and Child’s maternal grandmother,2 with whom

Mother and Child lived. As a result of the dispute, Mother moved out of

maternal grandmother’s house and was homeless for a period of time. CYF

obtained emergency custody of Child on August 10, 2016. Child was

adjudicated dependent on October 19, 2016, and was placed to live with his

paternal aunt. Child continues to reside with paternal aunt, an adoptive

resource; Child’s half-sister, A.W, also lives with him at their paternal aunt’s

home.Child was diagnosed with autism spectrum disorder. Mother suffers

from depression, anxiety and mood disorder. Mother has suffered from

mental health issues since her adolescent years, having been admitted to

several psychiatric hospitals as a teenager.3 CYF developed a family service

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1 On April 29, 2019, our Court sua sponte consolidated Mother’s appeal at 466

WDA 2019 and CYF’s cross-appeal at 515 WDA 2019. 2

In April 2016, the court entered a protection from abuse (PFA) order against

Mother as it related to maternal grandmother. N.T. Termination Hearing,

8/10/18, at 12. Moreover, two temporary PFA orders were entered between

Mother and the father of Child’s half-sister, in March 2003 and December

2005. Id. at 43.

3 Mother has been receiving Social Security disability benefits for a number of

years due to her mental health problems.
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plan (FSP) for Mother with the goal of reunification. Mother’s plan consisted

of attending family therapy, obtaining suitable housing, and attending court- ordered mental health treatment. Mother was initially granted unsupervised

visitation with Child; however, in May 2017, Mother’s visits changed to

supervised and occurred once a week for 2 to 4 hours. Mother’s visits were

supervised because she had trouble managing Child’s “head banging and

tantrums” and because CYF noticed a negative change in Child’s behavior after

he visited alone with Mother. Mother received in-home services, parenting

therapy, and child-parent interaction therapy, all arranged by CYF. Mother’s

attendance at therapy was inconsistent. However, she visited Child

consistently.

On January 19, 2018, CYF filed a petition to terminate Mother’s parental

rights pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), and (8). On August 9, 2018,

Heather Kelly, Esquire, entered her appearance for Mother in the matter.4 On

August 10, 2018, the trial court held a termination hearing,5 at which a CYF

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4 On April 20, 2018, the court granted Jeffrey K. Eisenberg, Esquire’s motion

to withdraw his appearance as parent advocate for Mother. Eisenberg, who

was affiliated with the Juvenile Court Project, entered his appearance for

Mother in this matter on February 6, 2018.

5 On April 11, 2018, the court appointed conflicts counsel to represent Child’s

legal interests in the contested termination matter. See 23 Pa.C.S. § 2313(a)

(children have statutory right to counsel in contested involuntary termination

proceedings) and In re K.R., 200 A.3d 969 (Pa. Super. 2018) (en banc), but

see In Re: T.S., E.S., 192 A.3d 1080, 1092 (Pa. 2018) (“[D]uring contested

termination-of-parental-rights proceedings, where there is no conflict between
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caseworker, Dr. Neil Rosenblum, a court-appointed psychological evaluator

for Orphans’ Court/dependency matters (via telephone), paternal aunt, a

parenting coach, and two individuals who transported Child to supervised

visits with Mother testified. On August 14, 2018, the trial court entered an

order involuntarily terminating Mother’s parental rights to Child pursuant to

sections 2511(a)(2), (5), (8)6 and (b) of the Adoption Act.7

On September 25, 2018, Mother filed a pro se Pa.R.A.P. 1925(b)(1)

concise statement of errors complained of on appeal. On October 31, 2018,

CYF filed a motion to strike Mother’s Rule 1925(b)(1) statement. On

November 2, 2018, the trial court ordered Mother’s Rule 1925(b)(1) statement

be stricken because “no [n]otice of [a]ppeal filed by Birth Mother appear[ed]

on the record.” Order, 11/2/18. The order acknowledged that “a notice of

appeal must be filed within thirty days of the date of entry of that order.” Pa.R.A.P. 903(a). Id. Accordingly, the court found that “Mother’s failure to

do so result[ed] in waiver of her right to appeal.” Id.

____________________________________________ a child’s legal and best interests, an attorney-guardian ad litem representing

the child’s best interests can also represent the child’s legal interests.”).

6 Because CYF chose to seek termination under sections 2511(a)(1), (2), &

(8), and the trial court ordered termination under sections 2511(a)(2), (5), &

(8), we will confine our review to those subsections that overlap, sections

2511(a)(2) & (8).

7 23 Pa.C.S. §§ 2101-2938.
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Almost three months later, on January 29, 2019, Mother filed a petition

for permission to file a notice of appeal nunc pro tunc in the trial court. The

court held a hearing on Mother’s petition on February 28, 2019. On March 13, 2019, the court entered an order granting Mother’s petition and ordering her

to “file a Notice of Appeal and a Concise Statement of Errors Complained of

on Appeal within thirty (30) days from the date of the entry of th[e o]rder.”

Order, 3/8/19. The order also directed Mother’s counsel, Heather Kelly,

Esquire, to withdraw her appearance and new counsel enter his appearance

for Mother.

Mother filed her nunc pro tunc Rule 1925(b)(1) and notice of appeal on

April 1, 2019. On April 10, 2019, CYF filed its notice of cross-appeal. Mother

raises the following issues for our consideration:

(1) Whether the trial court abused its discretion and/or erred as

a matter of law in concluding that termination of biological

Mother’s parental rights would serve the needs and welfare

of the Child pursuant to 23 Pa.C.S. § 2511([a])[](2)?

(2) Whether the trial court abused its discretion and/or erred as

a matter of law in concluding that termination of biological

Mother’s parental rights would serve the needs and welfare

of the Child pursuant to 23 Pa.C.S. § 2511([a])[](5)?

(3) Whether the trial court abused its discretion and/or erred as

a matter of law in concluding that termination of biological

Mother’s parental rights would serve the needs and welfare

of the Child pursuant to 23 Pa.C.S. § 2511([a])[](8)?

(4) Whether the trial court abused its discretion and/or erred as

a matter of law in concluding that termination of biological

Mother’s parental rights would serve the needs and welfare

of the Child pursuant to 23 Pa.C.S. § 2511([b])?
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Appellant’s Brief, at 5. On cross-appeal, CYF raises the following issue for our

review: “Did the Orphans’ Court err as a matter of law and/or abuse its

discretion in permitting [] Mother to file a late appeal nunc pro tunc?” Cross- Appellant’s Brief, at 5.

Because CYF’s issue involves a procedural matter that could potentially

implicate the waiver doctrine as it relates to Mother’s claims, we will address

its issue first.

CYF contends on cross-appeal that the trial court improperly granted

Mother’s petition to appeal nunc pro tunc where she did not allege or prove

that the delay in filing her notice of appeal was the result of fraud or a

breakdown in the court system.

In In re Adoption of W.R., 823 A.2d 1013 (Pa. Super. 2003), our Court

recognized that:

[a]llowance of an appeal nunc pro tunc lies at the sound discretion

of the trial judge. More is required before such an appeal will be

permitted than the mere hardship imposed upon the appellant if

the request is denied. As a general matter, a trial court may grant

an appeal nunc pro tunc when a delay in filing an appeal is caused

by extraordinary circumstances involving fraud or some

breakdown in the court's operation through a default of its officers.

Where an appeal is not timely because of non-negligent

circumstances, as they relate to either the appellant or his

counsel, and the appeal is filed within a short time after the

appellant or his counsel learns of and has an opportunity to

address the untimeliness, and the time period which elapses is of

very short duration, and appellee is not prejudiced by the delay,

the court may allow an appeal nunc pro tunc. The circumstances

occasioning the failure to file an appeal must not stem from

counsel's negligence or from a failure to anticipate foreseeable

circumstances.
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Id. at 1015 (emphasis added). Pennsylvania Rule of Appellate Procedure 1925(b)(1) requires a concise

statement of errors complained of on appeal be filed with the notice of appeal

in Children’s Fast Track appeals.8 See Pa.R.A.P. 1925(b)(1) (effective March

16, 2009); see also Pa.R.A.P. 102 (appeal from any order involving

termination of parental rights designated as Children's Fast Track appeal). Instantly, the trial court’s termination order was filed on August 14, 2018. Mother testified that she knew an appeal had to be filed within 30 days of that

date, or by September 13, 2018, in order to be considered timely. Mother’s

attorney told her she was unable to file the appeal in Orphans’ Court and that

Mother would have to file it on her own. On September 14, 2018, Mother

testified that she “typed up a notice of appeal,” went to the Family Division of

the Allegheny County Orphans’ Court9 and was told by an employee at the

front desk to take the notice of appeal “up to the fifth floor to . . . Judge

[Woodruff’s] chambers.” N.T. Hearing, 2/28/19, at 19. Mother complied and

handed the notice to the judge’s secretary, and told her to “please take it to

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8 We note that Pa.R.A.P. 905(a)(4) states that “[i]f a notice of appeal is

mistakenly filed in an appellate court, or is otherwise filed in an incorrect office

within the unified judicial system, the clerk shall immediately stamp it with

the date of receipt and transmit it to the clerk of the court which entered the

order appealed from, and upon payment of an additional filing fee the notice

of appeal shall be deemed filed in the trial court on the date originally filed.”

However, we do not deem a trial judge’s chambers to be “an office within the

unified judicial system” for purposes of Rule 905.

9 Mother first attempted to file the notice of appeal in our Court and was told

that she had to file it in the Family Division of the Orphans’ court, located

across the street from the Superior Court. N.T. Hearing, 2/28/19, at 21-22.
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the proper place and to [sic] where it needs to go.” Id. at 9, 21. This appeal

was never in fact filed with the trial court. Mother, however, did file a concise

statement of errors complained of on appeal on September 25, 2018, albeit

11 days late.

On November 2, 2018, CYF filed a motion to strike Mother’s concise

statement. Judge Woodruff granted the motion, struck the statement, and

found that Mother’s failure to file a timely notice of appeal resulted in waiver

of that right. However, after Mother filed a petition to reinstate her appellate

rights, the court held a hearing and granted her relief.

In his Rule 1925(a) opinion, Judge Woodruff supports his decision to

grant Mother nunc pro tunc relief, noting:

This [c]ourt concludes Mother made a good faith effort to file a

notice of appeal, and in fact believed that she had properly done

so when she presented the notice of appeal to a member of this

[c]ourt’s staff. Thus[,] Mother took no further steps to preserve

her appellate rights.

On September 26, 2018, Mother filed a concise statement of

errors complained of on appeal, still believing that her notice of

appeal had been properly filed, and[,] thus[,] took no further

steps to ensure that her appellate rights were preserved. On

October 31, 2018, CYF filed a motion to strike Mother’s concise

statement of errors complained of on appeal which this [c]ourt

granted on November 2, 2018, thus alerting Mother to the fact

that her notice of appeal had not been properly filed. Mother then

sought and retained new counsel in November [] 2018[,] who filed

a petition to have her appellate rights reinstated.

* * *

Here, Mother made a good faith attempt to file her notice of appeal

on September 14, 2018, one day after the expiration of the thirty- day appeal period, and in fact believed that her appeal had been
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successfully filed and that her appellate rights were preserved.

Under the particular circumstances of this case, this [c]ourt

concludes that Mother is entitled to reinstatement of her appellate

rights nunc pro tunc. Trial Court Opinion, 4/26/19, at 5-6, 8.

Instantly, it is undisputed that Mother waited almost three months to

file a petition for permission to appeal nunc pro tunc after the trial court

informed her that her notice of appeal was not timely filed and that her “failure

to do so result[ed] in waiver of her right to appeal.” Order, 11/2/18.

However, despite her rather significant delay in filing the notice of appeal, we

conclude that Mother was entitled to the reinstatement of her appeal rights

nunc pro tunc where counsel essentially abandoned Mother.

It is well-established indigent parents are entitled to counsel in

involuntary termination proceedings. See In re Adoption of T.M.F., 573

A.2d 1035, 1039 (Pa. Super. 1990). See also 23 Pa.C.S. § 2313(a.1) (“The

court shall appoint counsel for a parent whose rights are subject to termination

in an involuntary termination proceeding if, upon petition of the parent, the

court determines that the parent is unable to pay for counsel or if payment

would result in substantial financial hardship.”). In In re Adoption of R.I., 312 A.2d 601 (Pa. 1973), our Supreme Court recognized that “[a]n individual

is entitled to counsel at any proceeding, which may lead to the deprivation of

substantial rights,” such as a parent’s concern for the liberty, care and control

of his or her child. Id. at 602. Moreover, in In re V.E., 611 A.2d 1267 (Pa.

Super. 1992), our Court held that “counsel appointed to represent an indigent

parent on a first appeal from a decree involuntarily terminating his or her
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parental rights, may . . . petition . . . for leave to withdraw from representation

if he or she can find no issues of arguable merit on which to base the appeal.”

Id. at 1275. In reaching its holding, our Court noted that an indigent parent

who is faced with the permanent loss of his or her child “is entitled to be

represented by an advocate, an attorney who will support the appeal to the

best of his or her ability.” Id. (emphasis in original and added).

Accordingly, while we agree with the trial court’s conclusion that Mother

was entitled to nunc pro tunc appellate relief, we do so on a different basis.

See Blumenstock v. Gibson, 811 A.2d 1029, 1033 (Pa. Super. 2002) (our

Court is not limited by trial court’s rationale and may affirm its decision on

any basis). Fundamentally, Mother was entitled to counsel throughout the

filing of her direct appeal and contemporaneous Rule 1925(b)(1) statement.

Here, counsel not only told Mother that she was unable to file an appeal on

her behalf, but she essentially abandoned her throughout the entire appellate

process. In fact, at the time the court held the hearing on Mother’s petition

for permission to file a nunc pro tunc appeal, termination counsel, Attorney

Kelly was still counsel of record; however, Mother’s current appellate counsel,

Anthony P. Piccirilli, Jr., Esquire, was the only individual present to represent

her at the hearing. As we acknowledged in In re V.E., Mother was “entitled

to be represented by an advocate . . . who will support [her] appeal” or, in

the alternative, seek leave to withdraw. Thus, we conclude that under the

particular circumstances of this case, Mother was entitled to reinstatement of
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her appellate rights nunc pro tunc and the appointment of new counsel to

represent her on appeal once former counsel properly withdrew from the case.

We now turn to the substantive issues presented by Mother on appeal,

namely, whether termination of Mother’s parental rights was proper under

sections 2511(a) and (b) of the Adoption Act. Mother contends that the court

erred in terminating her parental rights to Child where she had made “great

strides” with regard to her parenting skills, including her ability to address

Child’s special needs. Appellant’s Brief, at 24. In addition, Mother claims that

her court-ordered supervised visitation with Child was too limited in duration

(a maximum of three or four hours once a week) which, in turn, reduced her

ability to effectively use the services provided to her by CYF. Finally, Mother

contends that termination did not serve Child’s needs and welfare where she

and Child have a strong parent-child bond.

Despite the undeniable efforts Mother has made by availing herself of

the reunification services provided by CYF, we find that termination is proper

under section 2511(a)(8).10 In order to terminate parental rights under

section 2511(a)(8), CYF, as the petitioner, must show: (1) that Child has

been removed from the care of Mother for at least twelve (12) months; (2)

that the conditions which had led to the removal or placement of Child still

exist; and (3) that termination of parental rights would best serve the needs

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10 We can affirm the trial court’s decision regarding the termination of parental

rights with regard to any single subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
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and welfare of Child. See 23 Pa.C.S.A. § 2511(a)(8). Notably, termination

under section 2511(a)(8) does not require an evaluation of Mother’s

willingness or ability to remedy the conditions that led to placement of Child. In re J.T. and R.T., 817 A.2d 505, 509 (Pa. Super. 2003).

Mother’s depression, anxiety and domestic violence issues, the main

reasons for Child’s placement, continue to exist and significantly affect her

capacity to parent. Mother’s mental health problems are chronic and prevent

her from acknowledging Child’s behavioral and emotional deficits. Child

requires a high level of consistency in care due to his developmental delays

and autism. N.T. Termination Hearing, 8/10/18, at 99 (Doctor Rosenblum

testifies that Child “requires a lot of stability, a lot of consistency in the

environment, and of course, certainly requires someone who can consistently

and reliably work and support his progress in school with his developmental

therapies and with his behavior therapies.”). While Mother has made

noticeable progress over the past two years by cooperating with in-home

services, obtaining housing, visiting Child regularly, and interacting positively

with him during visits, Mother’s mental health issues remain a constant

concern. CYF caseworker Sally Fink testified that Mother’s mental health

concerns not only interfere with her ability to parent, but also impede her

ability to maintain relationships with her family and hinder her ability to

manage or handle Child’s behavioral issues. N.T. Termination Hearing,

8/10/18, at 17; id. at 99 (testimony from behavioral psychologist that Child

“needs somebody who can consistently attend developmental conferences,
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school conferences, behavior conferences [and] who can keep his routines on

a day-to-day basis very predictable[.]”).

At the time of the termination hearing, Mother was no longer receiving

mental health treatment as CYF recommended in her FSP, and was

inconsistent in taking her psychotropic medications. Child also had services

and medical treatment delays due to Mother’s nonfeasance. Id. at 27.

Caseworker Fink testified that CYF believes termination is necessary because

Mother “is not able and capable of maintaining . . . care for [Child] long term”

and also believes that termination would serve Child’s needs and welfare

where foster mother is meeting Child’s educational, developmental and

psychological needs. Id. at 29, 41.

Doctor Rosenblum, who performed three psychological evaluations11 of

Mother, testified that Mother is in denial of Child’s significant developmental

impairments because of her own mental health issues which, in turn,

contribute to her inability to effectively parent. Id. at 108. Although Dr.

Rosenblum testified that Mother undeniably loves her son, cares about him, and has a beneficial parent-child relationship with Child, the doctor also

testified that Child’s relationship with his foster mother, who is also his

paternal aunt, is more “necessary and beneficial” than his relationship with

Mother. Id. at 115. See In re I.J., 972 A.2d 5 (Pa. Super. 2009) (strength

of bond between child and potential adoptive parent important consideration

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11 The evaluations were performed in September 2016, October 2017, and

March 2018.
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in section 2511(b) analysis). Doctor Rosenblum also testified that Child has

more of a “familiarity” with Mother than an actual bond as he is incapable of

“performing meaningful attachments to other people.” Id. at 124.

Essentially, Dr. Rosenblum indicated that he could not recommend Mother be

Child’s primary caretaker due to Child’s significant developmental needs. Id.

at 122.

Because Child has been in placement for over two years, which amounts

to half of his life, the conditions that led to his placement continue to exist,

and termination of Mother’s parental rights would serve Child’s needs and

welfare, we affirm the trial court’s order terminating Mother’s parental rights

under section 2511(a)(8). We also find that termination is proper under

section 2511(b) where terminating Mother and Child’s bond would not cause

irreparable harm or extreme emotional consequences to Child and where Child

is bonded with his paternal aunt, a prospective adoptive parent, who meets

his safety, educational, medical, developmental and behavioral needs. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/27/2019