J-S15029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Z.J.J., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: T.S., FATHER No. 2263 EDA 2015

Appeal from the Decree entered June 18, 2015, 

in the Court of Common Pleas of Philadelphia County, Family 

Court, at No(s): CP-51-AP-0000181-2012; CP-51-DP-0000501-2010; FID# 

51-FN-322315-2009

BEFORE: BENDER, P.J.E., OLSON, and PLATT*, JJ.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 29, 2016

T.S. (“Father”) appeals from the decree entered on June 18, 2015, 

granting the petition1filed by the Child Advocacy Unit of the Defender 

Association of Philadelphia (“CAU” or the “Agency”), seeking to involuntarily 

terminate Father’s parental rights to his dependent child, Z.J.J., a/k/a/ Z.J., 

a male born in March of 2009 (“Child”), as well as the order entered on June 

18, 2015, granting a petition to change Child’s permanency goal to 

adoption.2 We vacate and remand.

The trial court set forth the relevant history of this case in its

opinion. See Trial Court Opinion, 9/3/2015, at 1-2 (unpaginated). We 

adopt the trial court’s recitation for purposes of this appeal. See id. We 

 

* Retired Senior Judge specially assigned to the Superior Court.

1

 Pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and 

(b). 

2

 Pursuant to Section 6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351.
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reproduce the following facts and procedural history, however, relevant to 

the instant appeal, as follows:

On October 6, 2014, the CAU filed a petition for involuntary 

termination of parental rights [of C.A.J., a/k/a C.J., Child’s 

Mother (“Mother”) and Father].

On October 24, 2014, [] Father signed a consent and 

petition to voluntarily relinquish his parental rights to 

[Child].

On October 24, 2014, a termination of parental rights 

hearing for [Child] was held in the matter. The trial court 

found by clear and convincing evidence that [] Mother’s 

parental rights of [Child] should be terminated pursuant to 

the Pennsylvania Juvenile Act [sic]. [] Father’s petition was 

held in abeyance. Subsequently, [] Father revoked his 

voluntary relinquishment petition.

On June 18, 2015, a termination of parental rights hearing 

for [Child] regarding [] Father was held in this matter. The 

trial court found by clear and convincing evidence that [] 

Father’s parental rights of [Child] should be terminated 

pursuant to the Pennsylvania Juvenile Act [sic]. 

Furthermore, the court held that it was in the best interest 

of [] [C]hild that the goal be changed to adoption.

Trial Court Opinion, 9/3/2015, at 1-2 (unpaginated) (superfluous 

capitalization omitted).

In separate decrees dated and entered on June 18, 2015, the trial 

court involuntarily terminated the parental rights of Mother and the unknown 

father of Child.3 On July 16, 2015, the trial court appointed Attorney Neil 

Krum as appellate counsel for Father. On July 20, 2015, Father timely filed 

 

3 Neither Mother nor the unknown father filed an appeal from the decrees 

terminating their respective parental rights, nor is either of these individuals 

a party to the present appeal.
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a notice of appeal along with a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

In his brief on appeal, Father raises four questions for this Court’s 

review, as follows:

1. Did the court below err in finding that grounds for 

termination of parental rights had been proven by “clear 

and convincing evidence”? 

2. Did the court below err in finding that the [CAU] had met its 

burden in proving grounds under 23 Pa.C.S.A. § 

2511(a)(1), (2), (5) and (8)?

3. Did the court below err in finding that the [CAU] had met its 

burden to prove that termination would be in [] [C]hild’s 

best interests, under § 2511(b)? 

4. Did the court below err in denying [d]ue [p]rocess and 

[e]qual [p]rotection of [l]aw to Appellant T.S., Father, as 

guaranteed by the Constitutions of the United States and of 

the Commonwealth of Pennsylvania? 

Father’s Brief, at 4.

In reviewing an appeal from an order terminating parental rights, we 

adhere to the following standard: 

[A]ppellate courts must apply an abuse of discretion 

standard when considering a trial court’s determination of a 

petition for termination of parental rights. As in 

dependency cases, our standard of review requires an 

appellate court to accept the findings of fact and credibility 

determinations of the trial court if they are supported by the 

record. In re: R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). If the 

factual findings are supported, appellate courts review to 

determine if the trial court made an error of law or abused 

its discretion. Id.; R.I.S., 36 A.3d [567, 572 (Pa. 2011) 

(plurality opinion)]. As has been often stated, an abuse of 

discretion does not result merely because the reviewing 

court might have reached a different conclusion. Id.; see 
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also Samuel Bassett v. Kia Motors America, Inc., 34 

A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630, 

634 (Pa. 2003). Instead, a decision may be reversed for an 

abuse of discretion only upon demonstration of manifest 

unreasonableness, partiality, prejudice, bias, or ill-will. Id.

As we discussed in R.J.T., there are clear reasons for 

applying an abuse of discretion standard of review in these 

cases. We observed that, unlike trial courts, appellate 

courts are not equipped to make the fact-specific 

determinations on a cold record, where the trial judges are 

observing the parties during the relevant hearing and often 

presiding over numerous other hearings regarding the child 

and parents. R.J.T., 9 A.3d at 1190. Therefore, even 

where the facts could support an opposite result, as is often 

the case in dependency and termination cases, an appellate 

court must resist the urge to second guess the trial court 

and impose its own credibility determinations and 

judgment; instead we must defer to the trial judges so long 

as the factual findings are supported by the record and the 

court’s legal conclusions are not the result of an error of law 

or an abuse of discretion. In re Adoption of Atencio, 650 

A.2d 1064, 1066 (Pa. 1994). 

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

The burden is upon the petitioner to prove by clear and convincing 

evidence that the asserted grounds for seeking the termination of parental 

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). The 

standard of clear and convincing evidence is defined as testimony that is so 

“clear, direct, weighty and convincing as to enable the trier of fact to come 

to a clear conviction, without hesitance, of the truth of the precise facts in 

issue.” Id. quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

This Court may affirm the trial court’s decision regarding the 

termination of parental rights with regard to any one subsection of Section 
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2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en 

banc). The trial court terminated Father’s parental rights under Section 

2511(a)(1), (2), (5), (8), and (b). See Trial Court Opinion, at 9/22/2015, at 

1. Section 2511(a)(1), (2), (5), (8), and (b) provide as follows:

§ 2511. Grounds for involuntary termination

(a) General rule.--The rights of a parent in regard to a 

child may be terminated after a petition filed on any 

of the following grounds:

(1) The parent by conduct continuing for a period of at least 

six months immediately preceding the filing of the petition 

either has evidenced a settled purpose of relinquishing 

parental claim to a child or has refused or failed to perform 

parental duties.

(2) The repeated and continued incapacity, abuse, neglect 

or refusal of the parent has caused the child to be without 

essential parental care, control or subsistence necessary for 

his physical or mental well-being and the conditions and 

causes of the incapacity, abuse, neglect or refusal cannot or 

will not be remedied by the parent.

* * *

(5) The child has been removed from the care of the parent 

by the court or under a voluntary agreement with an agency 

for a period of at least six months, the conditions which led 

to the removal or placement of the child continue to exist, 

the parent cannot or will not remedy those conditions within 

a reasonable period of time, the services or assistance 

reasonably available to the parent are not likely to remedy 

the conditions which led to the removal or placement of the 

child within a reasonable period of time and termination of 

the parental rights would best serve the needs and welfare 

of the child.

* * *
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(8) The child has been removed from the care of the parent 

by the court or under a voluntary agreement with an 

agency, 12 months or more have elapsed from the date of 

removal or placement, the conditions which led to the 

removal or placement of the child continue to exist and 

termination of parental rights would best serve the needs 

and welfare of the child.

* * *

(b) Other considerations.--The court in terminating the 

rights of a parent shall give primary consideration to the 

developmental, physical and emotional needs and welfare of 

the child. The rights of a parent shall not be terminated 

solely on the basis of environmental factors such as 

inadequate housing, furnishings, income, clothing and 

medical care if found to be beyond the control of the parent. 

With respect to any petition filed pursuant to subsection 

(a)(1), (6) or (8), the court shall not consider any efforts by 

the parent to remedy the conditions described therein which 

are first initiated subsequent to the giving of notice of the 

filing of the petition.

23 Pa.C.S.A. § 2511.

This Court has explained that the focus in terminating parental rights 

under Section 2511(a) is on the parent, but, under Section 2511(b), the 

focus is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. 

Super. 2008) (en banc). We will focus our review on Section 2511(a)(1) and

(2). We note that the trial court relied on its discussion of the facts in 

relation to Section 2511(a)(1) to support its analysis under Section 

2511(a)(2). See Trial Court Opinion, 9/3/2015, at 1-4 (unpaginated).

We have explained this Court’s review of a challenge to the sufficiency 

of the evidence supporting the involuntary termination of a parent’s rights 

pursuant to Section 2511(a)(1) as follows:
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To satisfy the requirements of Section 2511(a)(1), the 

moving party must produce clear and convincing evidence 

of conduct, sustained for at least the six months prior to the 

filing of the termination petition, which reveals a settled 

intent to relinquish parental claim to a child or a refusal or 

failure to perform parental duties.

* * *

Once the evidence establishes a failure to perform parental 

duties or a settled purpose of relinquishing parental rights, 

the court must engage in three lines of inquiry: (1) the 

parent’s explanation for his or her conduct; (2) the postabandonment contact between parent and child; and (3) 

consideration of the effect of termination of parental rights 

on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citations omitted).

[T]o be legally significant, the [post-abandonment] contact 

must be steady and consistent over a period of time, 

contribute to the psychological health of the child, and must 

demonstrate a serious intent on the part of the parent to 

recultivate a parent-child relationship and must also 

demonstrate a willingness and capacity to undertake the 

parental role. The parent wishing to reestablish his parental 

responsibilities bears the burden of proof on this question.

In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted); see 

also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super 2008) (en 

banc).

Further, regarding the definition of “parental duties,” this Court has 

stated as follows:

There is no simple or easy definition of parental duties. 

Parental duty is best understood in relation to the needs of 

a child. A child needs love, protection, guidance, and 

support. These needs, physical and emotional, cannot be 

met by a merely passive interest in the development of the 
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child. Thus, this court has held that the parental obligation 

is a positive duty which requires affirmative performance.

This affirmative duty encompasses more than a financial 

obligation; it requires continuing interest in the child and a 

genuine effort to maintain communication and association 

with the child.

Because a child needs more than a benefactor, parental 

duty requires that a parent exert himself to take and 

maintain a place of importance in the child’s life.

Parental duty requires that the parent act affirmatively with 

good faith interest and effort, and not yield to every 

problem, in order to maintain the parent-child relationship 

to the best of his or her ability, even in difficult 

circumstances. A parent must utilize all available resources 

to preserve the parental relationship, and must exercise 

reasonable firmness in resisting obstacles placed in the path 

of maintaining the parent-child relationship. Parental rights 

are not preserved by waiting for a more suitable or 

convenient time to perform one’s parental responsibilities 

while others provide the child with . . . her physical and 

emotional needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004).

To satisfy the requirements of Section 2511(a)(2), the moving party 

must produce clear and convincing evidence regarding the following 

elements: (1) repeated and continued incapacity, abuse, neglect or refusal; 

(2) such incapacity, abuse, neglect or refusal caused the child to be without 

essential parental care, control or subsistence necessary for his physical or 

mental well-being; and (3) the causes of the incapacity, abuse, neglect or 

refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825 

A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental 

rights under Section 2511(a)(2), due to parental incapacity that cannot be 
J-S15029-16

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remedied, are not limited to affirmative misconduct; to the contrary, those 

grounds may include acts of refusal as well as incapacity to perform parental 

duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

Here, in relation to Section 2511(a)(1) and (2), the trial court stated 

as follows:

In the instant case, at the October 24, 2014 hearing, all 

parties stipulated to the facts in the petition for involuntary 

termination of parental rights. (N.T., 10-14-14, p. 4 and 5). 

Additionally, at the June 18, 2015 hearing, the stipulation 

as to the facts in the petition was reiterated. (N.T., 6-18-

15, p. 3 and 4). [] Father and his counsel were present at 

both proceedings. (N.T., 10-14-14, p. 3; 6-18-15, p. 3).

It is clear from the record that for a period of six (6) months 

leading up to the filing of the [p]etition for [i]nvoluntary 

[t]ermination, [F]ather failed to perform parental duties for 

[] [C]hild. The facts in the petition state that “Father has 

not been consistent with his visits since 2013. Furthermore, 

[] [F]ather was offered 15 visits and missed 5 during the 

period from August 2013 through the end of December 

2013. Moreover, during the 2014 year, [] [F]ather was 

offered 35 visits. [F]ather missed 30 of the last 35 

scheduled visits offered to him. (CAU Petition, Statement of 

Facts, p. 7, unpaginated). Lastly, [a Philadelphia 

Department of Health Services (DHS)] social worker found 

that [] Father does not [have] appropriate housing. He 

does not have enough space in his already overcrowded 

house for [Child] Id. at 7.

* * *

In the instant matter, [] [C]hild has been in placement care 

for over forty-two months. The evidence established [] 

[C]hild is currently in a safe environment with [C]hild’s 

needs being met (N.T., 6-18-15, p. 3).

* * *
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In the present case, [] Father has not remained in contact 

with DHS or New Foundations [foster care] and he has not 

contacted DHS or New Foundations to check on [] [C]hild’s 

welfare. (CAU Petition, Statement of Facts, p. 7, 

unpaginated).

Trial Court Opinion, 9/3/2015, at 4.

Again, this Court has stated that the focus in terminating parental 

rights under Section 2511(a) is on the parent, but it is on the child pursuant 

to Section 2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 

(Pa. Super. 2008) (en banc). In reviewing the evidence in support of 

termination under Section 2511(b), our Supreme Court recently stated as 

follows:

[I]f the grounds for termination under subsection (a) are 

met, a court “shall give primary consideration to the 

developmental, physical and emotional needs and welfare of 

the child.” 23 Pa.C.S. § 2511(b). The emotional needs and 

welfare of the child have been properly interpreted to 

include “[i]ntangibles such as love, comfort, security, and 

stability.” In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). 

In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], [our 

Supreme] Court held that the determination of the child’s 

“needs and welfare” requires consideration of the emotional 

bonds between the parent and child. The “utmost 

attention” should be paid to discerning the effect on the 

child of permanently severing the parental bond. In re 

K.M., 53 A.3d at 791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

With regard to Section 2511(b), the trial court stated the following:

In the instant matter, the social worker from New 

Foundations testified that [] Father and [Child] have no 

parental bond. (N.T. 10/24/14, p. 6). [] [F]ather was 

inconsistent with his visitation with [] [C]hild. He missed 30

of 35 visits offered to him during the year of 2014. 
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Furthermore, the DHS social worker stated that “there is no 

parental bond between [Child] and his father. [Child] has 

been taken by DHS to visit with [] [F]ather in Sunbury, PA 

once a month for 2 years. . . [Child] does not know the 

names of the children who live in the house ([Father’s] 

girlfriend’s children), does not know the name of his halfbrother, and does not even know the name of the dog.” 

Moreover, [] Father has not remained in contact with DHS 

or New Foundations and he has not contacted DHS or New 

Foundations to check on [] [C]hild’s welfare. (CAU Petition, 

Statement of Facts, p. 7, unpaginated).

The testimony indicated that [Child] would not be adversely 

affected if [] Father’s rights were terminated. (N.T., 10-14-

14, p. 6) Furthermore, [Child] shares a primary parental 

bond with his current caretaker. [Child] looks to his current 

caretaker for love, safety, security and to have his basic 

needs met. Lastly, [] Father has not remained in contact 

with DHS or New Foundations to check on [] [C]hild’s 

welfare. (CAU Petition, Statement of Facts, p. 7, 

unpaginated).

As explained in the initial [c]ourt [o]rder, the [t]rial [c]ourt 

found by clear and convincing evidence that [CAU] met their 

statutory burden pursuant to 23 Pa.C.S.A. § 2511(a) and 

(b) and that it was in the best interest of [] [C]hild to 

change the goal to adoption (N.T. 6/18/15, pg. 5).

* * *

For the preceding reasons, the court finds that [CAU] met 

its statutory burden by clear and convincing evidence 

regarding the termination of parental rights pursuant to 23 

Pa.C.S.A. § 2511(a)(1) and (2) and § 2511(b). 

Furthermore, the court finds that its ruling will not cause 

[Child] to suffer irreparable harm and it is in the best 

interest of [] [C]hild as [the] result of testimony regarding 

[] [C]hild’s safety, protection, mental, physical and moral 

welfare to terminate [] Father’s parental rights.

Trial Court Opinion, 9/3/2015, (unpaginated). 
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In his argument in support of his first issue on appeal, Father asserts 

the evidence presented was not clear and convincing and was insufficient to 

terminate his parental rights. Specifically, Father asserts that the trial court 

erred in relying on: 1) the petition filed by CAU to involuntarily terminate his 

parental rights; 2) the stipulation of his trial counsel, which he describes as 

rather perfunctory, to the facts in the petition; and 3) “14 lines [of 

testimony] in a transcript, comprised of four questions and answers.” 

Father’s Brief, at 9, 11. Moreover, Father contends that it is unclear whether 

the stipulation relates to the facts stated in the original petition to 

involuntarily relinquish his parental rights or a subsequent petition to 

voluntarily relinquish his parental rights. Id. at 12-13. More specifically, 

Father claims upon review of the October 24, 2014 hearing transcript, “it 

appears ... that petitions to involuntarily terminate parental rights were 

under discussion with respect to Mother, as well as to Father, but that a 

petition to voluntarily relinquish rights was also under consideration for 

Father.” Id. at 12. 

At the hearing on October 24, 2014, regarding the petitions to 

involuntarily terminate the parental rights of Mother and Father, the 

following individuals were present: Attorney Barbara Berry, counsel for CAU; 

Attorney Thomas Bryan, counsel for DHS; Attorney Edelina Schumann, 

counsel for Mother; and Attorney James King, counsel for Father. The 

following witnesses were present and testified: Brenda Howard, a former 
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DHS social worker; Shanna Jones, a New Foundations caseworker; and 

Valerie Walker, a DHS social worker.

The following exchange and testimony occurred:

MS. BERRY: . . . Your Honor, Child Advocate – I brought the 

petitions today. We’d first like to do a -- I have service on 

both parties. Counsel stipulated to that. [Father] is present 

in the courtroom.

I served [M]other—do I need to do that? I served [M]other 

at . . . . I’d like to put – both – counsel has stipulated to 

the facts in the petition and we’re proceeding today so that, 

should anything happen with the voluntaries, we don’t have 

to come back again in six months.

I’m asking that you take the evidence and hold it in 

abeyance until the – until the voluntaries vest, okay? Ms. 

Schumann, do you agree to stipulate to the facts in the 

petition as to [M]other?

MS. SCHUMAN: So stipulated.

MS. BERRY: Okay. Your Honor, I’d like to very briefly call 

Brenda Howard for bond issues.

THE COURT: Okay. Ms. Howard?

* * *

MS. BERRY: Okay. Mr. King, do you stipulate to the facts? 

MR. KING: Yes.

MS. BERRY: -- as to father?

MR. KING: Yes.

MS. BERRY: And I’m going to ask the same questions, but 

I’m going to ask them of Ms. Jones, who supervises the 

visits. Ms. Jones?

MS. JONES: Yes?
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MS. BERRY: Is there a bond between [Child] and his father?

MS. JONES: No.

MS. BERRY: Do you feel that if [Father] were not – if visits 

were revoked, that [Child] would [be] adversely affected?

MS. JONES: No.

MS. BERRY: Do you believe there’s no parental bond 

between [Father] and [Child]?

MS. JONES: Yes.

MS. BERRY: Thank you. That’s all I have.

MR. BRYAN: No questions.

THE COURT: All right. Does anybody have anything else?

MS. SCHUMANN: No.

THE COURT: Okay. 

MS. BERRY: Okay. Do I need to go? I ask that you hold 

the – that you find that I have met my burden – the child 

advocate has met its burden under 2511A-1, 2, 5 and 8, 

and that you terminate the rights of both . . . [M]other, and 

. . . [F]ather.

I’d ask that you do so for [M]other today, and that we hold 

in abeyance any decision of [F]ather until such time as the 

voluntaries, which [Father has signed today], vest and are 

accepted.

THE COURT: Do you have anything regarding [M]other?

MS. SCHUMAN: Only to be vacated within 31 days.

THE COURT: All right. With respect to mom, based upon 

the stipulation by and between counsel that if the social 

worker were called to testify, she would testify in 

accordance with the facts in the petition, as well as the 
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testimony presented in court today, I do find that the 

Department of Human Services has met their burden by 

clear and convincing evidence to involuntarily terminate 

mom’s parental rights, pursuant to 2511A-1, 2, 5, and 8, as 

well as 2511B.

I’m going to reserve the best interest portion for the next 

hearing, after we handle [F]ather’s portion. We’re going to 

hold [F]ather’s petitions in abeyance.

MR. BRYAN: And I’m sorry, Your Honor, just one request. 

It’s that child advocate has met their burden.

THE COURT: Oh, you know what, you are correct.

MR BRYAN: Thank you, Your Honor.

THE COURT: I stand corrected – that the child advocate has 

met their burden by clear and convincing evidence. Okay.

* * *

MR. BRYAN: Oh, who has safety?

MS. HOWARD: We do.

MS. BRYAN: Miss, when did you last see [] [C]hild in the 

current foster home?

MS. WALKER: October 16th.

Mr. BRYAN: At that time, was the child [...]

MS. WALKER: Yes.

MR. BRYAN: Basic needs being met?

MS. WALKER: Yes.

MR. BRYAN: Thank you.

N.T., 10/24/2014, at 1-9.
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At the hearing on June 18, 2015, the following individuals were 

present: Attorney Berry on behalf of CAU; Attorney Bryan on behalf of DHS; 

Attorney King on behalf of Father; and Maureen Eld, the DHS court 

representative were present, as well as Father, and R.W., Child’s foster 

parent. Further, Stefanie Edwards, caseworker for New Foundations, Inc., 

the provider agency for DHS, was present and testified. The following 

exchange occurred:

THE COURT: Okay, Miss Berry. It’s your petition.

MS. BERRY: Your Honor, I’m asking that the [c]ourt move 

on the voluntaries [sic] relinquishment of rights petitions 

that [Father] signed back on October 24, 2014.

At that time we put on a stipulated trial. We have reviewed 

[sic] the [c]ourt record is clear, that the parties stipulated 

to the facts in the petition. [Father] was here, he had 

agreed to stipulate to the facts in the petition, based on 

that, Your Honor, I’ve met my burden, and that the 

voluntary petitions be dismissed.

THE COURT: Anybody else have anything?

MR. BRYAN: No, your Honor, I’ll just get safety testimony.

BY MR. BRYAN: 

Q. Miss [Edwards], where’s the child currently placed?

A. At New Foundations foster home.

Q. When did you last see the child in that home?

A. On June the 10th, 2015.

Q. At that time was the child safe?

A. The child was safe.
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Q. Child’s basic needs being met?

A. His basic needs are being met.

MR. BRYAN: Thank you.

M[R]. KING: Your Honor, can I just say that on behalf of 

[F]ather, he does object and he cites the fact that after he 

signed the vol’s, he felt that he did not fully understand 

what was explained to him at the time.

MS. BERRY: Your Honor, there was testimony taken from 

Brenda Howard and Mr. King made a statement on the 

record that they sat with [Father] at the time, they read 

them to him, they were there when he signed them, and 

that at no time did he say he wasn’t understanding what 

was going on. On the other side [sic] though, we’re asking 

that those petitions be set aside, and that we move on the 

involuntary petitions.

THE COURT: I think at this point we’re at the stipulated 

trial. However, let me see counsel in the back one more 

time, I apologize. I hate to keep making you walk back and 

forth.

(Sidebar, off the record.)

 

THE COURT: All right. So, just so the record is clear, what 

was the date of the stipulated trial?

MS. BERRY: October 24, 2014.

THE COURT: All right. Based upon the previous stipulation, 

by and between counsel, and that stipulation on 10/24, 

2014, was that it was a stipulation by and between counsel 

that if the social worker were called to testify, that she 

would testify in accordance with the facts in the petition, it 

was held in abeyance, I’m going to make a ruling now, I do 

find that the Department of Human Services has met their 

burden by clear and convincing evidence –

MS. BERRY: actually it would be me, I filed. 
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THE COURT: I’m sorry, that the child advocate it was her 

petition, I stand corrected, has met their burden by clear 

and convincing evidence to involuntarily terminate 

[F]ather’s parental rights pursuant to 2511A-1 and 2, as 

well as 2511B, I do find it’s in the best interest of the child 

to change the goal to adoption, Mr. King’s appointment is 

vacated within 31 days. Mr. King, if [F]ather chooses to 

appeal, either file his notice of appeal for him, or contact 

court administration and make sure that they have 

somebody file his notice of appeal to keep his appellate 

rights intact.

M[R]. KING: Yes, sir.

THE COURT: Does that sound reasonable?

M[R]. KING: Yes.

THE COURT: Okay. All right.

MR. BRYAN: Thank you, your Honor. I believe we already 

got to safety.

THE COURT: All right, we just need a date. So, Mr. King 

and [F]ather, you two are excused.

N.T., 6/18/2015, at 2-5. 

Initially, we disagree with the argument raised by both CAU and DHS 

that Father has waived his first issue. At the hearing on June 18, 2015, 

Father preserved his objection to the trial court’s incorporation of the 

stipulation that was entered on the record on October 24, 2014. Father’s 

counsel raised an objection, and asserted that Father did not understand the 

stipulation at the earlier hearing. See N.T., 6/18/2015, at 3. Thus, we find 

that the issue was properly preserved in the trial court for purposes of 

appellate review. See Pa.R.A.P. 302(a) (providing that issues not raised in 
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the lower court are waived and cannot be raised for the first time on 

appeal). We also find that Father raised the issue in his brief with sufficient 

specificity to preserve our review. In In the Interest of: T.L.B., 127 A.3d 

813, 817 (Pa. Super. 2015), a panel of this Court declined to find waiver in a 

juvenile case for failure of the appellant, the Commonwealth, to adequately 

develop the challenge in its concise statement. The panel held that the 

concise statement could have been more specific, but the issue was readily 

apprehended by the trial court. Id. at 817 citing Commonwealth v. 

Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (holding the appellant had not 

waived his sufficiency of the evidence claim in a drug case for failure to 

adequately develop it in his concise statement, where the matter was 

relatively straightforward, and readily apprehended by the trial court). 

Here, the record created at the hearing on July 18, 2015, consisted of 

only the incorporation of the stipulation at the October 24, 2014 hearing, 

and a few questions by DHS counsel regarding the safety of Child. As 

explained in its opinion, in rendering its termination decision, the trial court 

relied on the facts in the involuntary termination petition to which the DHS 

social worker would testify if called as a witness, and to which Father had 

stipulated at the October 24, 2014 hearing. Under the circumstances of this 

case, however, we find that the trial court erred in relying on the stipulated 

facts from the October 24, 2014 hearing. The October 24, 2014 hearing was 

held on a petition for Father’s involuntary relinquishment of his parental 
J-S15029-16

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rights. At that time, however, Father indicated that he wished to voluntarily 

relinquish his parental rights.4 Accordingly, Father stipulated to the facts in 

the involuntary petition filed against him. The trial court later determined 

that Father revoked his voluntary relinquishment petition.5 As a result, 

Father made the stipulation when he considered voluntarily relinquishing his 

rights, but then later revoked his consent to voluntarily terminate, and the 

trial court still held Father to the prior stipulation. The trial court should 

have convened a new termination hearing and heard new evidence from 

CAU to support its involuntary petition instead of relying on the stipulation of 

facts from the prior hearing. 

Additionally, in his fourth issue, Father raises a claim that the trial 

court deprived him of his guaranteed due process rights, both substantive 

and procedural, under the Fourteenth Amendment to the United States 

Constitution. Father asserts that the trial court denied him adequate and 

meaningful notice and hearing. Father’s Brief, at 23. “Due process requires 

nothing more than adequate notice, an opportunity to be heard, and the 

chance to defend oneself in an impartial tribunal having jurisdiction over the 

matter.” In re J.N.F., 887 A.2d 775, 781 (Pa. Super. 2005). “Due process 

is flexible and calls for such procedural protections as the situation 

 

4

 Upon our review of the certified record and trial court docket, there is a 

copy of a voluntary relinquishment of parental rights petition with regard to 

Father, but no indication it was filed.

5

 There is no indication that Father filed a revocation of his consent to a 

voluntary termination of parental rights petition. 
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demands.” In re Adoption of Dale A., II, 683 A.2d 297, 300 (Pa. Super. 

1996) citing Mathews v. Eldridge, 424 U.S. 319, 334, (1976).

We agree that the trial court’s incorporation of the prior stipulation into 

the record at the October 18, 2015 hearing, and its reliance thereon in 

rendering its decision to terminate Father’s parental rights, over his trial 

counsel’s objection, deprived Father of due process. Father lacked truly 

meaningful notice and an opportunity to be heard with regard to the 

involuntary termination of his parental rights. 

As we are vacating the trial court’s order on the basis of Father’s first 

and fourth issues, we do not reach Father’s remaining issues. Accordingly, 

we are constrained to vacate the trial court’s decree and order, and remand 

the matter to the trial court for further proceedings consistent with this 

memorandum.

Decree and order vacated; appeal remanded with instructions. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/29/2016