Adoption of T.M.F., In re

• Decision Date: 30 March 1990
• Citation: 392 Pa.Super. 598,573 A.2d 1035
• Parties: , 58 USLW 2635 In re ADOPTION OF T.M.F. Appeal of S.F., Mother of T.M.F.
• Court: Pennsylvania Superior Court

Page 1035

573 A.2d 1035

392 Pa.Super. 598, 58 USLW 2635

In re ADOPTION OF T.M.F. Appeal of S.F., Mother of T.M.F.

Superior Court of Pennsylvania.

Argued June 19, 1989.

Filed March 30, 1990.

Kingsley A. Jarvis, Norristown, for appellant.

Susan P. Gantman, Norristown, for Children and Youth Services, participating party.

John H. Martin, III, Norristown, for Tiffany Fuehrer, participating party.

Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.

TAMILIA, Judge:

T.M.F., subject of the termination of parental rights proceedings now before this Court en banc, was born on February 17, 1983 to appellant S.F. Appellant challenges the termination of her parental rights to T.M.F. She argues her counsel was ineffective and that she is, in fact, entitled to effective assistance of counsel in the same manner in which criminal defendants are afforded new effective counsel when original counsel is ineffective to the extent a defendant's rights are prejudiced. Appellant urges that like criminal defendants she should be given an opportunity for a new trial with effective counsel.

A summary of the circumstances surrounding T.M.F.'s life is necessary to fully understand the gravity of the situation which led to the drastic remedies of termination of parental rights and placement of T.M.F. in foster care with plans for adoption at a later date.

The Montgomery County Office of Children and Youth Services (hereinafter OC & Y) first began its lengthy contact with T.M.F. and her family in October 1985 when an anonymous phone call, indicated appellant was prostituting and appellant and T.M.F.'s father were shooting heroin. The call precipitated an investigation of the home appellant was then sharing with T.M.F. At that time appellant denied drug and prostitution involvement and the matter was determined to be an unjustified neglect referral (T.T. 1/19/88, pp. 80-81). On March 19, 1986, however, appellant, apparently under the influence of drugs, went to OC & Y and requested services. Soon thereafter, on March 25, 1986, T.M.F. was placed in a foster home at the request of R.Z., the putative father who contacted OC & Y the day before asserting he could no longer handle caring for T.M.F., who had been left with him by appellant mother. This placement was agreed to by appellant who signed a voluntary placement agreement on April 8, 1986. ¹ R.Z. also signed an agreement transferring custody of T.M.F. to OC & Y.

The trial court's Opinion aptly describes the attempts at rehabilitating appellant, an admitted drug addict since age 12, and appellant's lifestyle since T.M.F.'s placement.

Since that time, respondent has engaged in one drug treatment or detoxification program after the other. She has consistently failed to follow through with any of these programs. Her residences have been numerous and temporary. She has engaged in prostitution. Most importantly to the issue at hand, is the fact that she has allowed [T.M.F.] to become the victim of sexual abuse.

The month following [T.M.F.'s] being placed in an OC & Y foster home, pursuant to the voluntary placement agreement signed by respondent, respondent entered a detoxification program at Eagleville Hospital. This program is designed for a minimum of 28 days' inpatient care; however, respondent left after four days. Thereafter, respondent was referred to the Norristown Life Center for therapy and a drug treatment program. She was later referred to Norristown Life Center on two additional occasions; however, as on the first referral, she failed to comply with their drug treatment plan and Norristown Life Center requested that she not be referred there again.

From February 20, 1987, until February 25, 1987, respondent was at the Giuffre Medical Center for drug detoxification; however, she refused their rehabilitation program. From April 13, 1987, until April 17, 1987, respondent detoxed at Brandywine Detox Center and was transferred to the Eagleville Hospital drug rehabilitation program. From August 23, 1987, until August 28, 1987, respondent was in Valley Forge Detoxification Unit. Upon her discharge from this unit, she was to enter Programs in Counseling partial hospitalization program, but did not do so. On September 23, 1987, respondent was to enter Giuffre Medical Center; on October 1, 1987, she was to enter Rolling Hills Hospital; and, on October 14, 1987 the Montgomery County Methadone Clinic. OC & Y never received any verification of her participation in these latter programs. Additionally, respondent has consistently refused to attend Alcoholics Anonymous or Narcotics Anonymous meetings.

Respondent has been advised on numerous occasions that the only hope for her regaining custody of T.M.F. is that she overcome her drug and alcohol abuse problems. She has promised on numerous occasions that she will attack the problems, but has failed in every instance to do so.

Respondent has lived at numerous addresses, on a temporary basis, with various relatives and friends. It was while living at 1019 Swede Street that she was permitted unsupervised visits in her apartment with T.M.F. Unhappily, during [T.M.F.'s] first and only overnight visit on May 28, 1986, a case of child sexual abuse was indicated [to be discussed further, infra ].

Slip Op., Stefan, J., 1/21/88, pp. 20-21.

Under any standard suggested by appellant, ineffectiveness of counsel could not be a basis for reversal in this case.

OC & Y has established by overwhelming evidence that the requirements of 23 Pa.C.S § 2511(a)(1), (2), (5) and (b) ² for termination of parental rights have been met. In defense, the appellant would offer evidence by an expert that at some indefinite time in the future there is a possibility of rehabilitation. This offer of proof must be measured against the facts that the child has been in foster care since March of 1986, appellant has been a drug user and/or addicted since age 12 and the appellant has failed in completing at least eight rehabilitation programs and is presently not drug free. Under these circumstances, the mandate of section 2511(b) comes into play, "(b) Other considerations--The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child."

The statement of questions, as posed by appellant, presents the dual question as to effective assistance of counsel and whether there was sufficient evidence to show there was no possibility that S.F. could correct her drug addiction and be a fit mother to raise her daughter. Put another way, the question may be stated that if the evidence was so convincing and overwhelming that, pursuant to statute, termination of parental rights was mandated, may ineffectiveness of counsel be a basis for setting aside that finding? Stated in that fashion, the question must be answered in the negative.

Our analysis begins with the assumption that ineffectiveness of counsel is a relevant consideration within the context of a termination hearing. By statute and pursuant to the finding of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Supreme Court held due process requires that before parental rights can be terminated the state must support its allegations by at least clear and convincing evidence. In Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the Supreme Court held the Due Process Clause does not require the appointment of counsel for indigent parents in every parental status termination proceeding. The central question raised in Kramer and Lassiter is a reprise of the theme expounded in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); and McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

Essentially, that theme espouses the principle that in delinquency, dependency or adoption cases involving children, the constitutional provisions, rules and laws designed to govern proceedings in adult criminal or civil actions are not necessarily applicable or desirable. Underlying this consideration is the belief that despite some misgivings about shortcomings in these types of proceedings, there was a retained belief that such proceedings were not purely adversarial and that traditional concepts of Parens Patriae, and the focus on the unity of the family and the best interest of the child, were sufficiently important to avoid hindering the court with procedural and technical limitations. The court could thereby focus a greater degree of its energies and resources in bringing about family unity and rehabilitation.

With this background in mind, we approach the issue of how and when ineffectiveness of counsel can be raised and considered in the context of a termination proceeding.

Pennsylvania statutes do not require counsel in termination proceedings, although Pennsylvania case law does, In re Adoption of R.I., 455 Pa. 29, 312 A.2d 601 (1973), and flowing from this it is presumed that counsel would and should be effective. The central question then is how this issue may be raised and measured. Subsidiary to that question is whether the criminal rules and law developed to guide that procedure are applicable to the resolution of that issue. For a number of reasons we hold they are not.

While a termination proceeding is adversarial in the sense that it places the state in opposition to the parents with respect to the custody of the child, it does not implicate the liberty interests of the parent or the child as would be the case of a defendant in a criminal action. The underlying right to counsel in criminal proceedings is based on the sixth amendment to the United States Constitution which states in part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ... and to have the assistance of counsel for...