In re Interest of A.J.R.O.

• Decision Date: 08 February 2022
• Docket Number: 1238 EDA 2021
• Citation: 270 A.3d 563
• Parties: In the INTEREST OF: A.J.R.O., a Minor Appeal of: D.C.O., Mother
• Court: Pennsylvania Superior Court

270 A.3d 563

In the INTEREST OF: A.J.R.O., a Minor

Appeal of: D.C.O., Mother

No. 1238 EDA 2021

Superior Court of Pennsylvania.

Submitted November 16, 2021

Filed February 8, 2022

Griffin B. Evans, Milmont Park, for appellant.

Sam S. Auslander, Media, for A.O., participating party.

Anne-Marie Murphy, Media, for Children and Youth Services, appellee.

Roger R. Ullman, Swarthmore, Guardian Ad Litem, participating party.

BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.

OPINION BY BOWES, J.:

D.C.O. ("Mother") appeals from the decree entered on May 24, 2021,¹ which terminated her parental rights involuntarily to her son, A.J.R.O., born in September 2014.² In addition, Mother appeals from the decree dated April 28, 2021, changing A.J.R.O.’s permanent placement goal from return to parent or guardian to adoption. We vacate the termination decree and remand for proceedings consistent with this opinion.

The record reveals this family has a lengthy history of involvement with Children and Youth Services of Delaware County ("CYS") dating back to the time of A.J.R.O.’s birth when he tested positive for methadone

, opiates, and benzodiazepines. N.T., 3/24/21, at 95;³ CYS Exhibit 1 (Court Summary).⁴ CYS later received a report of a domestic violence incident between Mother and Father in July 2015 during which A.J.R.O. was injured. CYS Exhibit 1. A.J.R.O. was adjudicated dependent in August 2015, and court supervision ended in February 2016. N.T., 3/24/21, at 95; CYS Exhibit 1. CYS thereafter provided in-home services to monitor substance abuse concerns and the family's living situation. N.T., 3/24/21, at 96.

CYS received the referral resulting in A.J.R.O.’s current adjudication on March 12, 2019. Id . at 94. The referral indicated that when Mother and Father brought A.J.R.O. to the home of paternal aunt, his current foster mother, she suspected the parents were engaging in substance abuse and failing to attend to A.J.R.O.’s needs. Id . Thus, A.J.R.O. was adjudicated dependent for the second time on April 30, 2019. Id . at 23, 96; CYS Exhibit 1. A.J.R.O. has remained in that same foster home continuously since then. N.T., 3/24/21, at 98.

On September 23, 2020, CYS filed a petition to terminate involuntarily Mother's parental rights to A.J.R.O. on the adoption docket, No. 0033-2020-A. Although not clear from the record before us, CYS also filed a petition to change A.J.R.O.’s permanent placement goal from reunification to adoption at the dependency docket, No. CP-23-DP-0000163-2015.⁵ The orphans’ court held consolidated termination and goal change hearings on March 24, 2021, and April 28, 2021.⁶ Following the hearings, the court issued (1) a decree terminating Mother's parental rights, which it entered on the adoption docket on May 24, 2021; and (2) an order dated April 28, 2021, changing A.J.R.O.’s goal to adoption on the dependency docket.⁷

On June 17, 2021, Mother filed a single notice of appeal from both the termination decree and goal change order. Although her notice of appeal listed both the adoption and dependency docket numbers, it was only filed at the adoption docket. In her accompanying concise statement of errors complained of on appeal, Mother raised several issues challenging both the termination decree and goal change order.

In accordance with this Court's prior practice, we issued a per curiam order directing Mother to show cause why this appeal should not be quashed for failure to comply with the Official Note to Pa.R.A.P. 341(a) and Commonwealth v. Walker , 646 Pa. 456, 185 A.3d 969 (2018).⁸ Specifically, in Walker , the Pennsylvania Supreme Court mandated "that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed[ and t]he failure to do so will result in quashal of the appeal." Walker , supra at 977. Mother responded, asking this Court to strike the goal change portion of her appeal. Alternatively, she argued quashal was unnecessary pursuant to Always Busy Consulting , LLC v. Babford & Company , Inc. , ––– Pa. ––––, 247 A.3d 1033 (2021), because the termination and goal change dockets were "consolidated." Answer to Order to Show Cause, 7/22/21, at 2-3. Finally, she explained that her counsel relied on the 2019 Pennsylvania Dependency Benchbook when preparing this appeal, which did not mention Walker or the need to file multiple notices of appeal.

By order of August 4, 2021, this Court discharged the rule to show cause, but advised that the issue could be revisited by the merits panel, and that counsel should be prepared to address the panel's concerns either in their briefs or at oral argument. Order, 8/4/21. CYS raises the issue in its brief and urges this Court to quash the appeal pursuant to Walker .

The orphans’ court complied with Pa.R.A.P. 1925(a), and the matter is ripe for our review. Mother presents the following issues:

1) [Whether] the trial court err[ed] in determining that the agency provided, by clear and convincing evidence, the requirements of 23 Pa.C.S. 2511 (a)(1)(2)(5)(8) for the involuntary termination of the birth mother's parental rights, in that:

a. The trial court erred as a matter of law in not applying the time suspension as required by the Emergency Orders issued by the Hon. Kevin F. Kelly, President Judge of Delaware County, issued on 16 March 2020, 23 March 2020, 13 April 2020, 28 April 2020, and 5 May 2020.

b. The trial court erred in ignoring the executive orders of Governor Wolf to "Stay at Home" from 23 March 2020 to 4 June 2020.

c. The trial court erred in ignoring the Emergency Orders issued by the Hon. Kevin F. Kelly, President Judge of Delaware County, that suspended in person visitation between parents and children in placement from 23 March 2020 to 17 July 2020 and the de facto suspension of in person visitation between parents and children in placement from 23 March 2020 to May 2021.

2) Did the trial court abuse its discretion in finding that [Mother] abandoned her child when the foster parent threaten[ed] to call the cops if [Mother] returned to pick up the minor, [A.J.R.O.], in February 2019[?]

3) Did the trial court err concerning [Mother's] difficult pregnancy during the summer and fall of 2020, during the COVID-19 pandemic[?]

4) Did the trial court abuse its discretion when applying equitable princi[ples] to the termination of parental rights concerning the effect and reverberations of the COVID-19 pandemic upon society, the court, parents, supervised visitation providers, and [CYS?]

5) Did [t]he trial court abuse its discretion in finding that the termination of parental rights would best serve the needs and welfare of [A.J.R.O.] when there is a strong and loving bond between [Mother] and [A.J.R.O.], and severance of that bond will cause irreparable harm to [A.J.R.O.?]

6) Did the trial court abuse its discretion by failing to properly consider and sustain [Mother's] counsel's objections and directing the hearings progress, including, inter alia , the operational capability of the Courts during the COVID-19 pandemic and the operational capability of [CYS] during the COVID-19 pandemic[?]

Mother's brief at 4-5 (unnecessary capitalization omitted). Notably, Mother abandoned her challenges to the goal change order in her brief.

Before we address the merits of Mother's issues on appeal, we must first determine whether she has complied with the mandates of the Note to Rule 341 and Walker . CYS maintains that Mother filed a single notice of appeal from two separate orders, when she should have filed two separate notices of appeal. Thus, CYS argues, Mother's appeal should be stricken.

Mother does not address the Note to Rule 341 or Walker in her brief. Nonetheless, we consider Mother's request in her response to our rule to show cause for this Court to strike the offending goal change portion of her appeal, as the underlying order was that from which she failed to file a separate notice of appeal.⁹

As noted supra , Mother filed a single notice of appeal from two separate orders: a decree terminating her parental rights on the adoption docket and an order changing A.J.R.O.’s permanency goal on the dependency docket. Mother filed this notice of appeal solely at the adoption docket but purported to appeal from both dispositions, as evidenced by her inclusion of both dockets on the notice and challenging both orders in her concise statement.

This Court has since extended " Walker to require quashal when an appellant files a single notice of appeal from both the dependency docket and adoption docket as separate notices of appeal are required for discrete challenges to the permanency goal change order and termination order." In the Interest of S.D. , 257 A.3d 746, 749 (Pa.Super. 2021) (citing In the Matter of M.P. , 204 A.3d 976, 981 (Pa.Super. 2019) ). In S.D. , the father and mother appealed from the orders terminating their parental rights involuntarily from their children, as well as the separate order changing the children's permanency goal. Specifically, the parents jointly filed separate notices of appeal for each termination order, but therein listed both the adoption and dependency dockets. Although the circumstances in S.D. were not identical to those in Walker , this Court held that pursuant to Rule 341, "to the extent that [the parents] wished to challenge both the termination orders on the adoption docket and the goal change orders on the dependency dockets, they were required to file a notice of appeal from each order for each child." S.D. , supra at 750. In response to this Court's rule-to-show-cause order, the parents argued that they only intended to challenge the termination order and the dependency docket was erroneously included. However, this Court found this claim belied by the record, as the parents raised arguments challenging the goal change order in both their concise statement and appellate brief. Therefore, we quashed the appeals.

However, we are not bound by the holding in S.D. , as our Supreme Court has...