J-A30024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.P., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: A.S., MOTHER

No. 1334 MDA 2016

Appeal from the Decree of July 3, 2016

In the Court of Common Pleas of Huntingdon County

Orphans' Court at No(s): CP-31-OC-12-2016

BEFORE: BOWES, OLSON AND STABILE, JJ.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 22, 2016

Appellant, A.S., appeals from the decree that was entered on June 23, 

2016 and made final on July 3, 2016, which involuntarily terminated 

Appellant’s parental rights to her minor child, A.P. (born in October 2013) 

(hereinafter “Child”). We are constrained to remand the case for further 

proceedings consistent with this memorandum.

On March 18, 2016, Huntingdon County Children and Youth Services 

Agency (hereinafter “the Agency”), filed a petition for involuntary 

termination of Appellant’s parental rights (hereinafter “TPR Petition”).1 As 

the Agency averred, on August 15, 2014, the trial court entered an order 

____________________________________________

1 On that same date, the Agency filed a petition to involuntarily terminate 

the parental rights of Child’s natural father, Z.P. (hereinafter “Father”). 

Father was served with the termination petition and the trial court appointed 

counsel to represent Father; however, Father did not appear at the 

termination hearing. The trial court terminated Father’s parental rights to 

Child by decree entered on June 23, 2016 and made final on July 3, 2016. 

Father has not filed a notice of appeal from the trial court’s termination 

order and Father is not a party to the current appeal.
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finding that Child was dependent and awarding the Agency legal and 

physical custody of Child. The Agency averred:

At the time [Child] was originally placed, [Appellant] had 

overdosed on heroin and was subsequently arrested for 

burglary and placed in jail. Since that time, [Appellant] has 

either remained in jail or in a halfway house in compliance 

with sentences she received through the criminal justice 

system. [Appellant] absconded from the halfway house on 

February 10, 2016. At the time of this petition, a warrant 

for her arrest has been issued. . . . [H]er present 

whereabouts are unknown.

TPR Petition, 3/18/16, at ¶¶ 3 and 8 (some internal capitalization omitted).

Within the TPR Petition, the Agency claimed that: Appellant was 

incapable or unwilling to care for Child; Child “has been in placement in 

excess of [12] months;” Appellant has “made little, if any progress in 

remedying the issues and concerns which led to [Child’s] placement on 

August 15, 2014;” and, “[t]he conditions which led to the removal or 

placement of [Child] continue to exist and termination of [Appellant’s] 

parental rights would best serve the needs and welfare of [Child].” Id. at 

¶¶ 10-26. The Agency sought termination of Appellant’s parental rights 

under 23 Pa.C.S.A. §§ 2511(a)(2), (5), and (8). Id. at ¶¶ 13-26.

The trial court appointed counsel to represent Appellant and then 

scheduled a termination of parental rights hearing for June 23, 2016. 

However, although Appellant’s counsel appeared for the June 23, 2016 

hearing, Appellant did not personally appear at the hearing. 
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During the hearing, the Agency presented the testimony of Agency 

caseworker Rose Sanders, who was assigned Child’s case. As Ms. Sanders 

testified:

The case came into us on intake on June 2, 2014[,] . . . that 

there were concerns that [Appellant] was hiding from the 

caseworkers and didn’t want to do drug screens. There 

were concerns that she was using heroin. She was 

neglecting [Child]. There [were] reports that [Child] was 

crying all the time and had diaper rash and that there were 

concerns with home conditions.

. . .

On July 21st of 2014[, Appellant] overdosed . . . on heroin.

N.T., TPR Hearing, 6/23/16, at 4.

Ms. Sanders testified that, after Appellant’s overdose, “[Appellant] was 

arrested for theft[; s]he was caught in the act and [the police] notified [the 

Agency] that they were arresting her.” Id. at 5. As a result, on August 15, 

2014, the trial court declared Child dependent and placed Child in a foster 

home. Id. at 4-5. 

On August 27, 2014, Child was transferred from the foster home to 

the care of Father. Ms. Sanders testified:

After [Child] was placed with [Father], there were continued 

concerns of him testing positive for drugs but he was living 

with his parents at the time, so there were other caregivers. 

. . .

[O]n December 18[,] 2014, [Father] got kicked out of his 

parents’ home and he was homeless. So on December 19, 

2014, the Agency filed an EPC and we had to chase [Father] 

all over town for about eight hours until we found him and 

[Child] in the middle of the night in the cold.
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. . .

[Father] was caught by the Mount Union Police and the 

State Police [were] involved. They found him walking down 

the street carrying [Child] in freezing weather at like 12:30 

at night. . . . [Child] was dressed but he was dirty. He was 

hungry, he was thirsty and he was freezing. His face was 

red, beet red, from the cold.

Id. at 5-6 and 22.

Moreover, Ms. Sanders testified that the authorities had to “chase[] 

[Father] all over town” even though Father knew that the Agency was 

looking for him. Id. at 6. According to Ms. Sanders: “[Father] was in 

communication with us on and off on cell phone and refused to meet with us 

and refused to talk to us and meet with us face-to-face to discuss what we 

were doing.” Id.

On December 19, 2014, the Agency placed Child in E.H.’s foster home. 

Ms. Sanders testified that: Child has remained in E.H.’s home continuously 

since placement; E.H.’s home is pre-adoptive; Child is doing very well in 

E.H.’s home and is “part of their family;” Child refers to E.H. as “mom” and 

“looks at them as his family;” and, “an adoption and a permanent home for 

[Child would] be in [Child’s] best interests.” Id. at 6, 10, and 29.

Ms. Sanders testified that Appellant was incarcerated at the time Child 

was placed in E.H.’s home. Id. at 7. However, on August 12, 2015, 

Appellant was released to a Harrisburg halfway house and “the Agency 
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beg[a]n working with her to have visits [with Child] at the halfway house.” 

Id. at 8. 

Ms. Sanders testified that, from August 12, 2015 until October 2015, 

Appellant had two failed tests for alcohol at the halfway house and, as a 

result, Appellant was not permitted to leave the halfway house to visit Child. 

Id. at 11. Therefore, Ms. Sanders testified, the Agency twice traveled from 

Huntingdon to Harrisburg, with Child, so that Appellant could visit with Child. 

Id. However, Ms. Sanders testified:

[the last visit] didn’t go too well. It ended sooner than 

expected because [Appellant] had a breakdown of sorts 

when she was requested to change [Child’s] diaper and she 

couldn’t bring herself to do it and cried and asked for the 

foster mom to come back in and do it.

Id. at 17.

Ms. Sanders testified that she last heard from Appellant in October 

2015. Id. Further, Ms. Sanders testified, Appellant absconded from the 

halfway house on November 10, 2015 and, after a warrant was issued for 

her arrest, Appellant was arrested and incarcerated at SCI-Muncy. Id. at 8-

9 and 11. Ms. Sanders testified that Appellant was paroled “approximately a 

week or two” prior to the TPR hearing. Id. at 9. Nevertheless, Ms. Sanders 

testified that Appellant did not communicate with the Agency or with Child 

after her arrest. Id. at 9. 

Ms. Sanders also testified that Appellant: does not have the insight or 

ability to care for Child; has not been successful in obtaining and 
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maintaining a stable home for Child; and, has not remedied the situation 

that led to Child being placed and remaining in placement. Id. at 10-11. 

At the conclusion of the hearing, the trial court entered the following 

decree:

DECREE NISI

NOW, this 23rd day of June, 2016, the [trial] court makes 

the following findings of fact, conclusions of law[,] and 

decree nisi:

FINDINGS OF FACT

1. [Appellant] . . . is the natural mother of [Child].

2. [Appellant] was duly served by [the] Deputy Sheriff of 

Lycoming County, Pennsylvania, with [] service . . . relative 

to a Petition to Involuntarily Terminate Parental Rights 

regarding [Child].

3. [Appellant] failed to appear at the termination of parental 

rights hearing held June 23, 2016.

4. [Appellant] has been represented by counsel since 

[Child] was declared dependent on August 15, 2014. 

Similarly, she was represented by counsel in the 

termination proceeding.

5. At the time of the hearing, [Appellant] failed to attend; 

however, her counsel was in the courtroom and available to 

represent her.

6. Testimony elicited at the termination hearing indicates 

that [Appellant] was recently paroled from SCI-Muncy.

CONCLUSIONS OF LAW

1. The [trial] court was presented with sufficient factual 

evidence/information to support the involuntary termination 

of [Appellant’s] parental rights.
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2. Termination of the parental rights of [Appellant] is in the 

best interests of [Child].

3. The petitions, hearings[,] and procedures followed by the 

Agency are in compliance with the Pennsylvania Adoption 

Act.

DECREE NISI

The parental rights of [Appellant] regarding [Child] . . . are 

hereby terminated nisi. Huntingdon County Children’s 

Services is directed to obtain [Appellant’s] current address 

from either SCI-Muncy or the Pennsylvania Board of 

Probation and Parole. Thereafter, a copy of these findings 

of fact, conclusions of law[,] and decree nisi shall be served 

on [Appellant] at her address by both certified mail and first 

class mail.

[APPELLANT] SHALL HAVE TEN [] DAYS FROM THE DATE 

THIS DECREE NISI IS MAILED TO FILE OBJECTIONS OR 

EXCEPTIONS IN THE OFFICE OF THE CLERK OF THE 

ORPHANS’ COURT FOR HUNTINGDON COUNTY.

IF NO WRITTEN OBJECTIONS OR EXCEPTIONS ARE FILED 

WITHIN THE TIME ALLOWED, THIS DECREE NISI SHALL

BECOME FINAL WITHOUT THE NEED FOR ANY FURTHER 

ACTION BY THE COURT.

Trial Court Decree, 6/23/16, at 1-3 (some internal capitalization omitted).

Appellant did not file exceptions to the decree2and, on July 3, 2016, 

the decree became final by its own terms. Id. at 3. 

On July 18, 2016, Appellant (through counsel) filed a timely notice of 

appeal from the termination decree. However, Appellant did not file her 

____________________________________________

2 Appellant did not need to file exceptions to preserve her claim on appeal. 

See Pa.O.C.R. 7.1 (effective until October 31, 2016) (providing that the 

filing of exceptions is optional). 
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statement of errors complained of on appeal with her notice of appeal, as 

required by Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). 

Pa.R.A.P. 1925(a)(2)(i) (“[t]he concise statement of errors complained of on 

appeal shall be filed and served with the notice of appeal”). The trial court 

then issued a Rule 1925(a) opinion, which declared:

On July 18, 2016, [Appellant] filed an appeal from [the trial 

court’s] June 23, 2016 decree nisi which terminated the 

parental rights of [Appellant].

Counsel has failed to comply with Pa.R.A.P. 1925(a)(2) due 

to a failure to file a statement of matters complained of on 

appeal, thus [Appellant] has waived all issues on appeal 

pursuant to Pa.R.A.P. 1925(b)(4)(vii).

We would also note that [Appellant] failed to attend the 

termination hearing, and [the Agency] presented clear and 

convincing evidence that [Appellant’s] parental rights should 

be terminated.

Trial Court Opinion, 8/16/16, at 1 (some internal capitalization omitted).

On September 1, 2016, Appellant filed, in the trial court, a concise 

statement of errors complained of on appeal. The statement declared:

[The trial court] erred in terminating Appellant’s parental 

rights to [Child] because the evidence presented by [the 

Agency] was insufficient as a matter of law to support a 

termination of her parental rights. The Agency bore the 

burden to prove by clear and convincing evidence that 

termination of Appellant’s parental rights was justified 

pursuant to 23 Pa.C.S.A. § 2511(a)(2), (a)(5), or (a)(8), 

and it failed to do so. Considering the efforts and progress 

made by [Appellant] towards alleviating the conditions that 

led to the placement of [] Child and towards reunifying with 

[] Child, termination of Appellant’s parental rights was not 

in [] Child’s best interests.

Appellant’s Concise Statement, 9/1/16, at 1. 
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Appellant now raises the following claim to this Court:

Did the [trial court] err when it terminated [Appellant’s] 

parental rights to [Child], given that the evidence presented 

was insufficient as a matter of law to support a termination 

of [Appellant’s] parental rights, and that [Appellant] had 

made efforts and progress towards alleviating the conditions 

that led to the placement of [] Child?

Appellant’s Brief at 4.

In this case, the trial court concluded that Appellant’s claim on appeal 

was waived because Appellant failed to comply with Pennsylvania Rule of 

Appellate Procedure 1925(a)(2)(i) and file her concise statement of errors 

complained of on appeal contemporaneously with her notice of appeal. Trial 

Court Opinion, 8/16/16, at 1. In accordance with our binding precedent in 

In re J.T., 983 A.2d 771 (Pa. Super. 2009), we conclude that Appellant’s 

late filing of her concise statement does not result in the waiver of her claim 

on appeal. 

In In re J.T., the trial court terminated the mother’s parental rights to 

her child. The mother’s counsel then filed a notice of appeal to this Court, 

but counsel failed to include the requisite concise statement with the notice 

of appeal. See Pa.R.A.P. 1925(a)(2)(i). The mother’s counsel did, however, 

file a concise statement later, in response to the trial court’s order. 

On appeal, this Court held that counsel’s late filing of the concise 

statement did not result in the waiver of the mother’s issues on appeal. We 

explained:
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Pennsylvania Rule of Appellate Procedure 1925 . . . 

require[s] that in a Children's Fast Track appeal the [concise 

statement must] be filed and served with the notice of 

appeal. Pa.R.A.P. 1925(a)(2). Appellant did not do so. . . . 

Therefore, we must consider whether the untimely filing 

precludes appellate review.

In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), the 

Supreme Court of Pennsylvania stated that Rule 1925(b) 

established a clear rule for waiver as it stated that any 

issues not raised in a court-ordered Rule 1925(b) statement 

will be considered waived on appeal. In Commonwealth 

v. Butler, 812 A.2d 631 (Pa. 2002), the Supreme Court 

held that this waiver is automatic and applies regardless of 

whether the opposing party raises the waiver issue and 

regardless of whether the trial court issued an opinion 

addressing the issues on appeal.

In Commonwealth v. Burton, 971 A.2d 428 (Pa. Super. 

2009) (en banc), this court, based on a recent amendment 

of Rule 1925,[3] held that in criminal cases late filing of the 

statement of errors complained of does not mandate a 

finding of waiver. The Burton decision is premised on the 

concept that late filing is per se ineffectiveness of counsel. 

The client should not be penalized by dismissal of his appeal 

as a result of deprivation of his constitutional right to 

effective counsel.

The unique nature of parental termination cases has long 

been recognized by the Supreme Court of Pennsylvania. 

Thus, In re Adoption of R.I., 312 A.2d 601 (Pa. 1973), 

____________________________________________

3

Pennsylvania Rule of Appellate Procedure 1925(c)(3) declares:

If an appellant in a criminal case was ordered to file a 

Statement and failed to do so, such that the appellate court 

is convinced that counsel has been per se ineffective, the 

appellate court shall remand for the filing of a Statement 

nunc pro tunc and for the preparation and filing of an 

opinion by the judge.

Pa.R.A.P. 1925(c)(3).
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the Supreme Court held that an indigent parent in a 

termination of parental rights case has a constitutional right 

to counsel. The right to counsel in parental termination 

cases is the right to effective assistance of counsel even 

though the case is civil in nature. However, this right is 

more limited than that in criminal cases, as claims of 

ineffective assistance of counsel must be raised on direct 

appeal. We then review the record as a whole to determine 

whether or not the parties received a “fundamentally fair” 

hearing; a finding that counsel was ineffective is made only 

if the parent demonstrates that counsel's ineffectiveness 

was the cause of the decree of termination. If late filing of 

the 1925 statement waived [the m]other's appeal rights in 

this case, there has been per se ineffectiveness of counsel 

just as there was for the appellant in Burton. We conclude 

that, as in Burton, in parental termination cases a late 

filing of a required 1925 statement does not mandate a 

finding of waiver.

In re J.T., 983 A.2d at 774-775 (some internal citations and quotations 

omitted) (internal footnotes omitted).

In re J.T. applies in full to the case at bar. Therefore, in this 

termination of parental rights case, we conclude that counsel’s late filing of 

Appellant’s concise statement does not require the wavier of Appellant’s 

claims on appeal. Id.

On appeal, Appellant claims that the evidence was insufficient to 

support the termination of her parental rights. We have explained our 

standard of review:

In a proceeding to terminate parental rights involuntarily, 

the burden of proof is on the party seeking termination to 

establish by clear and convincing evidence the existence of 

grounds for doing so. 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 
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the precise facts in issue. It is well established that a court 

must examine the individual circumstances of each and 

every case and consider all explanations offered by the 

parent to determine if the evidence in light of the totality of 

the circumstances clearly warrants termination. 

We review a trial court’s decision to involuntarily terminate 

parental rights for an abuse of discretion or error of law. 

In re Adoption of G.L.L., 124 A.3d 344, 346 (Pa. Super. 2015) (internal 

quotation marks and citations omitted).

Further, as this Court has held:

In termination cases, an appellate court employs a broad 

scope of review to ensure that the trial court has 

satisfactorily fulfilled the requirements of examining all 

evidentiary resources. . . .

. . .

Scope of review, relates to the appellate court's duty to 

ensure that the trial court has satisfactorily fulfilled the 

requirements of examining all evidentiary resources, 

conducting a full hearing and setting forth its decision in a 

full discursive opinion. A broad scope of review, therefore, 

requires that the appellate court conduct a comprehensive 

review of the record formulated in and the decision 

formulated by, the lower court. In other words, in 

reviewing a termination of parental rights order, our 

Court must consider all evidence before the lower 

court as well as the lower court's findings of fact and 

conclusions of law.

In re K.P., 872 A.2d 1227, 1231 (Pa. Super. 2005) (internal quotations, 

citations, and emphasis omitted) (internal emphasis added).

In the case at bar, the trial court did not make any pertinent findings 

of fact, did not specify which subsection (or subsections) of 23 Pa.C.S.A. 

§ 2511(a) it utilized to terminate Appellant’s parental rights, and did not 
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conduct an analysis under either 23 Pa.C.S.A. § 2511(a) or (b). As we 

explained in In re K.P., “[w]e are unable to exercise our broad scope of 

review where the trial court fails to exercise its own independent analysis of 

the record in a full discursive opinion.” In re K.P., 872 A.2d at 1231.

Therefore, we must remand this case to the trial court, so that it may 

make the requisite factual findings and conduct a proper analysis under 23 

Pa.C.S.A. § 2511(a) and (b). Obviously, it is in the best interests of Child 

that we resolve this matter promptly. Accordingly, we shall retain 

jurisdiction over this appeal. Within ten days of this memorandum, the trial 

court shall issue a Rule 1925(a) opinion that recites its factual findings, 

states which subsection of 23 Pa.C.S.A. § 2511(a) it utilized to terminate 

Appellant’s parental rights, and applies the facts to the law of 23 Pa.C.S.A. 

§ 2511(a) and (b). Within three days of the trial court’s Rule 1925(a) 

opinion, Appellant’s counsel shall notify this Court’s prothonotary via letter 

whether additional briefing is necessary. If counsel notifies this Court that 

no such additional briefing is necessary (or fails to notify this Court within 

the required time period), we will decide the appeal on the basis of the trial 

court’s Rule 1925(a) opinion and the briefs filed by Appellant and the 

Agency/guardian ad litem. If additional briefing is necessary, Appellant shall 

file a supplemental brief with this Court within 10 days of the trial court’s 

Rule 1925(a) opinion. The Agency and the guardian ad litem may file a brief 
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within ten days of Appellant’s supplemental brief. No reply will be permitted 

without leave of Court.

Case remanded. Jurisdiction retained.