In Re Adoption of T.M.F.

573 A.2d 1035, 392 Pa. Super. 598, 1990 Pa. Super. LEXIS 699

• Court: Supreme Court of Pennsylvania
• Decided: March 30, 1990
• Docket: 2602
• Status: Published

Opinions

TAMILIA, Judge:

Tiffany Marie Fuehrer, subject of the termination of parental rights proceedings now before this Court en banc, was born on February 17, 1983 to appellant Susan Marie Fuehrer. Appellant challenges the termination of her parental rights to Tiffany. 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 Tiffany’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 Tiffany 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 Tiffany and her family in October 1985 when an anonymous phone call, indicated appellant was prostituting and appellant and Tiffany’s father were shooting heroin. The call precipitated an investigation of the home appellant was then sharing with Tiffany. 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 Ziegler 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. 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.

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.] being placed in an OC & Y foster home, pursuant to the voluntary placement

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.] 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 358 (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 his defense.” The Pennsylvania Constitution, Article I, Declaration of Rights § 9, Rights of accused in criminal prosecutions, provides: “In all criminal prosecutions the accused hath a right to be heard by himself and his counsel____” The fourteenth amendment of the United States Constitution, section 1, provides: “[N]or shall any State deprive any person of life, liberty, or property without due process of law.” From the interrelationships of these constitutional provisions, it may be and has been determined that a person charged with a crime is entitled to legal counsel and denial of that right is denial of due process of law. In Pennsylvania, this right is likewise incorporated in the Judicial Code, 42 Pa.C.S. § 2501.³ See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1963). In that respect, counsel who was not effective has been determined by various decisions to be the equivalent of no counsel and, therefore, a denial of due process. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth ex rel Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Thus we can fairly state that when the liberty interests of a defendant in a criminal action are at issue, the effectiveness of counsel is relevant to a due process analysis, but only within the context of the evolved criminal statutes, rules and case law.

Particularly in PCHA/PCRA proceedings which have developed in response to an overwhelming court and appellate review process as a substitute for the writ of habeas corpus, the ineffectiveness claim has surfaced as the last gasp of an accused’s attempt to have his sentence set aside after depletion of appeals. By claiming ineffectiveness of counsel in failing to present reasonable defenses as an extraordinary basis for a review of counsel’s stewardship, he is permitted a collateral review despite exhaustion of the appeal process. This stewardship can be easily and effectively measured against the rules and standards governing the criminal procedures at all critical stages of the procedure beginning with pretrial motions for suppression, the trial and its conduct, presentment of post-trial motions and timely appeals through representation by appellate counsel. While ineffectiveness of counsel can be raised at any time that new counsel becomes available who can review the effectiveness of prior counsel, the vast majority of such allegations are made after all permissible motions and appeals have been exhausted, as a collateral attack on the judgment of sentence.

From this synopsis of the genesis of the ineffectiveness proceeding, we can begin to draw an appropriate rationale as to how and when such a claim may be raised in a termination proceeding. There are many distinctions and few parallels between the criminal proceeding and the termination proceeding.

First, termination proceedings can in no way be compared to criminal proceedings either in a constitutional sense or procedurally. The right to counsel, protected by the sixth amendment of the United States Constitution, applies to criminal defendants, and its derivative right to effective counsel, which evolved in recent years, was intended only to apply to criminal matters. Attempts to superimpose the right and its accompanying procedures to non-criminal termination cases, while superficially appropriate, is misguided. The procedural rules, appellate posture and nature of the two classes of cases are so disparate that to apply the criminal doctrine to these cases would result in confusion, delays and the necessity for creation of rules of post-trial procedures, review and rehearings that are inappropriate for such matters. The constitutional rights in a termination proceeding, as in juvenile procedures, are derived from the due process clause of the fourteenth amendment of the United States Constitution and not the sixth amendment. In Interest of Del Signore, 249 Pa.Super. 149, 375 A.2d 803 (1977).

A second distinction which requires that form follow substance is that in criminal cases a liberty stake is at issue. More than anything, ineffectiveness of counsel is raised within the context of Post Conviction Relief Act which is the statutory substitute for habeas corpus cases. The federal system has made a bargain with the states to the effect that if an adequate procedure was developed within the state’s statutory scheme to grant relief equivalent to federal habeas corpus relief, the federal courts would retreat from wholesale and routine consideration of habeas corpus petitions by convicted incarcerated defendants, hence, the post-conviction collateral relief procedure with singular reliance on the extraordinary aspects of a claim of ineffectiveness of counsel. No comparable habeas corpus right exists in custody cases involving children, in which the federal habeas corpus jurisdiction is implicated. While prior to statutory and rule changes, habeas corpus was the common law means of raising a custody claim in the state trial courts, this has been and still is a matter only within state court jurisdiction and comes within the self-imposed domestic relations exception to federal jurisdiction. Barber v. Barber, 62 U.S. (21 How) 582,16 L.Ed. 226 (1856). Lest there be any doubt that the exception applies to custody cases, and is still viable in modern times, the recent pronouncement by the United States Supreme Court, Justice Powell speaking for the Court in Lehman v. Lycoming County Children’s Services, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982), makes this absolutely clear.

Ms. Lehman argues that her sons are involuntarily in the custody of the State for purposes of § 2254 because they are in foster homes pursuant to an order issued by a state court. Her sons, of course, are not prisoners. Nor do they suffer any restrictions imposed by a state criminal justice system. These factors alone distinguish this case from all other cases in which this Court has sustained habeas challenges to state-court judgments. Moreover, although the children have been placed in foster homes pursuant to an order of a Pennsylvania court, they are not in the “custody” of the State in the sense in which that term has been used by this Court in determining the availability of the writ of habeas corpus. They are in the “custody” of their foster parents in essentially the same way, and to the same extent, other children are in the custody of their natural or adoptive parents. Their situation in this respect differs little from the situation of other children in the public generally; they suffer no unusual restraints not imposed on other children. They certainly suffer no restraint on liberty as that term is used in Hensley [v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973)] and Jones [v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) ], and they suffer no “collateral consequences” — like those in Carafas [v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) ] — sufficient to outweigh the need for finality. The “custody” of foster or adoptive parents over a child is not the type of custody that traditionally has been challenged through federal habeas. Ms. Lehman simply seeks to relitigate, through federal habeas, not any liberty interest of her sons, but the interest in her own parental rights.

Although a federal habeas corpus statute has existed ever since 1867, federal habeas has never been available to challenge parental rights or child custody. Indeed, in two cases, the Court refused to allow the writ in such instances. Matters v. Ryan, 249 US 375, 63 L Ed 654, 39 S Ct 315 (1919); In re Burrus, 136 US 586, 34 L Ed 500, 10 S Ct 850 (1890).

Id. at 510-11, 102 S.Ct. at 3237, 73 L.Ed.2d at 936-37.

Having determined that the evolving right to counsel in termination proceedings cannot be traced to the criminal process, it is a fair statement that the criminal process does not apply.

Other considerations that make those procedures inapplicable as indicated above, have to do with the clearly different safeguards applicable to the procedures. While the standard of proof, clear and convincing evidence, is less in termination proceedings than beyond a reasonable doubt in criminal proceedings, it is still quite high. Additionally, because of the doctrine of Parens Patriae and the need to focus on the best interest of the child, the trial judge, who is the fact finder, is required to be an attentive and involved participant in the process. While he must depend upon the litigants to present the evidence to establish the particular elements or defenses in the termination case, he is not limited to their presentations, and as in any custody case, he may require more than they present and direct further investigation, evaluations or expert testimony to assure him that the interests of the child and the respective parties are properly represented. Under the aegis of the court, the role of the lawyer, while important, does not carry the deleterious impact of ineffectiveness that may occur in criminal proceedings. Also, since requirements of the statute which establish the basis for terminating parental rights are clearly set forth and the evidence necessary to meet these requirements is generally overwhelming, or in the alternative skimpy and subject to question, the role of the fact finder in determining whether the evidence is sufficient is far more important than that of the attorney representing the parents.

Such is not the case in a criminal proceeding where the judge is primarily an arbiter to assure compliance with the rules and to determine the correctness of evidentiary and procedural issues, wherein counsel must carry the burden of the prosecution or the defense. Any untoward insertion of judicial activism in the proceeding may itself be a ground for reversal. Also, frequently the jury is the fact finder and is likewise limited by the presentment of the evidence and must conform its decision making to the parameters laid down by the court. Thus, pursuant to a heavy overlay of rules, procedures and statutory and constitutional requirements, the process for review espoused in Strickland v. Washington, supra; Commonwealth v. Pierce,. 515 Pa. , 527 A.2d 973 (1987); and Washington v. Maroney, supra, is meaningful. They are a distortion when applied to termination proceedings.

Other relevant factors, set in juxtaposition, clearly show the anomaly which results in engrafting the approach adopted to the criminal proceedings to the termination cases. Criminal proceedings move in a different time frame than do termination proceedings. Failure to move a criminal proceeding within specific times may result in dismissal; such is not the case in termination proceedings. Improper or inadequate action by counsel may be rectified in part or in toto months or years after a final judgment of sentence with beneficial results for the appellant, whereas a review which turns around a decree of termination, unless done within a narrowly constrained time frame, may do incalculable damage to the child with only marginal or questionable benefit to the parent. In Lehman, supra, in denying habeas corpus jurisdiction in the federal courts, the Supreme Court dealt specifically with the harm engendered by delay in such proceedings when it said:

The states interest in finality is unusually strong in child-custody disputes. The grant of federal habeas would prolong uncertainty for children such as the Lehmans’ sons, possibly lessening their chance for adoption. It is undisputed that children require secure, stable, long term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child’s sound development as uncertainty over whether he is to remain in his current “home” under the care of his parents or foster parents, especially when such uncertainty is prolonged. Extended uncertainty would be inevitable in many cases if federal courts had jurisdiction to relitigate custody decisions.

458 U.S. at 513, 102 S.Ct. at 3238, 73 L.Ed.2d at 938 (emphasis added).

This is no less the case if ineffectiveness issues were permitted to extend and delay such resolution by serial allegations of ineffectiveness or instituting rules of court or court-made law requiring reviews similar to those in criminal proceedings. The Supreme Court recognizes a psychological determinate in child custody proceedings having to do with the child’s sense of time, which is measured by a different and faster clock than an adults, and the fact is that children evolve, grow, acquire new attachments and have differing needs which cannot be sublimated to the niceties of legal proceedings and the sometime dubious vagaries of the attacks on a decree.

Any determination as to ineffectiveness of counsel must be made expeditiously in the context of the original appeal, as a collateral attack by a post-decree petition and/or appeal, after normal appeals have been exhausted, is not permissible. In Interest of Del Signore, supra (Post Conviction Hearing Act is not available to juvenile proceeding since the child is not convicted of a crime). The question then remains what standard must be applied since we have already determined that the rules on ineffectiveness applied to criminal cases do not fit the proceeding on termination. This is answered by reviving the question of Gault, McKeiver, Winship and Santosky, supra, which is “what process is due?” Gault did not suggest that the juvenile courts become junior criminal courts and while Winship required proof beyond a reasonable doubt, it did not require that the informality and rehabilitative thrust and interest expressed by the concerned juvenile judge be forsaken, nor did the Supreme Court in McKeiver find that jury trials were an essential element to due process in juvenile proceedings. Similarly, we need not ingraft the test espoused by Maroney on termination cases to provide the requisite due process required here. In Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981) (proceeding held pursuant to alleged violations of the Juvenile Act cannot serve the functions of a proceeding held pursuant to alleged violations of the Crimes Code). Since we are constrained by the elimination of the doctrine of fundamental error which was renounced by Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), and we cannot overlook waiver of certain procedural defects, which is overcome in criminal practice through ineffectiveness claims in post-conviction hearings, we must look to a broader more acceptable means of review. Ironically, while rejecting the criminal practice and procedure, we may be guided by recent legislation to permit us to tailor a rule which will provide the answer to the question as to “what process is due?” Recently, the legislature narrowed the basis for review of ineffectiveness of counsel within the context of the PCRA Act of April 13, 1988, 42 Pa.C.S. § 9543(a)(2)(h) in providing that a petitioner seeking relief on a claim of ineffective assistance of counsel must plead and prove that counsel’s stewardship “so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.” This dramatically reduces the tiered inquiry which was established by Maroney and Pierce. The disenchantment of the Supreme Court with endless attacks upon the judgment of sentence is similarly expressed in Commonwealth v. Bobby Joe Lawson, 519 Pa. 504, 549 A.2d 107 (1988).

With the acknowledged retreat by the legislature and Supreme Court from time consuming and seemingly endless collateral attacks on the sentence and conviction, we do not wish to adopt a procedure which is to some degree discredited. We must, therefore, adopt a procedure which assures an opportunity to review an ineffectiveness claim, without adding additional procedural steps, additional hearings or remands for appointment of new counsel. Nor would it be appropriate to relegate those matters to a collateral attack by means of a habeas corpus action, a possibility suggested by dicta in Del Signore. Lehman, supra, has graphically demonstrated the inadequacy of that approach in termination and custody matters. In the context of a termination proceeding, the best approach to suggest itself is the fundamental fairness doctrine whereby, in the exercise of its broad scope of review, an allegation of ineffectiveness of counsel on appeal would result in a review by this Court of the total record with a determination to be made whether on the whole, the parties received a fair hearing, the proof supports the decree by the standard of clear and convincing evidence, and upon review of counsel’s alleged ineffectiveness, any failure of his stewardship was the cause of a decree of termination. Mere assertion of ineffectiveness of counsel is not the basis of a remand or rehearing, and despite a finding of ineffectiveness on one or more aspects of the case, if the result would unlikely have been different despite a more perfect stewardship, the decree must stand.

Our usual standard of review in such cases is as follows. An appellate court, in reviewing an order terminating parental rights, must employ a broad, comprehensive review of the record, but is limited in its standard of review to a determination of whether the trial court’s termination of parental rights is supported by competent evidence; unless the lower court has abused its discretion or committed an error of law, the order must stand. In re Baby Boy P., 333 Pa.Super. 462, 482 A.2d 660 (1984).

Applying that standard to the facts of this case, the evidence is overwhelming that termination was mandated. Applying the doctrine of fundamental fairness to the alleged ineffectiveness claim, the failure of counsel to present witnesses as to the possibility of rehabilitation of the mother in this case is of little significance to the result. The evidence of the possibility of rehabilitation is unconvincing in the face of the extremely long period of incapacity, without progress, and the serious deprivation of the child resulting therefrom, which was certain to continue for the indefinite future.

Counsel for the child at trial stated: “I think Children and Youth has done everything possible that they could do, and I think the needs and welfare of this particular child dictate the termination of her parental rights.” (T.T. at 123.) Appellant admits she is currently using downers and is also addicted to Tylenol IV and Dardins (T.T. at 109), and admits she is incapable of caring for the child at the present (T.T. at 113). Her prior unsuccessful attempts at detoxification and drug rehabilitation at Independence House (1980), Valley Forge Medical Center (March 1986), Eagleville (April 1986), Norristown Life Center (May 1986), St. Lukes Detoxification Program (January 1987), Giuffre Medical Center (February 1987), Eagleville Hospital (March 1987), Brandy-wine (April 1987), return to Eagleville (April 1987), and Norristown Addiction Program (April 1987) suggest little hope for success in the future. She presently lives in a single room, is admittedly not drug free and has not worked since 1981. The alleged ineffectiveness of trial counsel in failing to present a therapist who would be able to testify that appellant has a possibility of rehabilitation, pales into insignificance and triteness in the face of the present situation and unbroken history of drug abuse and lack of parental capacity. Any testimony under these circumstances would have been tolerated but most certainly not believed. Trial counsel should be excused for not doing a useless act and wasting the time of the court and the expert. Appellant is asking for the chance to pose a further experiment with her recovery and the child’s life, which is the best that an expert could have suggested to the court.

We believe the able trial judge Louis Stefan handed down the appropriate decree. We add that despite a very well prepared appellate brief and the strongest arguments that could be made for a case, which is at best desperate, there is no merit to the claim of ineffectiveness of trial counsel. Viewing the allegation of ineffectiveness of counsel, in light of the entire record, we believe the hearing was fundamentally fair and counsel’s ineffectiveness, if any, played no part in the result. No further delay is warranted and a return of this case to the trial court for rehearing on that issue would be of no avail and would result only in an unwarranted delay of a year or more, with further likely appeals.

Because of the above, the decree of termination must be affirmed.

Order affirmed.⁴

BROSKY, J., concurs in the result. BECK and ROWLEY, JJ„ concur. MONTEMURO, J., concurs and dissents, joined by CAVANAUGH and ROWLEY, JJ. JOHNSON, J., dissents.

1 . Caseworker Joyce Roff testified her first meeting with appellant was April 3, 1986. At that time, appellant participated in an intake interview. Her speech was slow and slurred and she kept “nodding out." She admitted she was addicted to codeine and valium and also drank (T.T. at 81).

2 . § 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 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 parents 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.

(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 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.

3 . § 2501. Appearance in person or by counsel

(a) Civil matters — In all civil matters before any tribunal every litigant shall have a right to be heard, by himself and his counsel, or by either of them.

(b) Criminal matters. — In all criminal prosecutions the accused has a right to be heard by himself and his counsel.

4 . While Judge Johnson has written a Dissenting Opinion, since he agrees with the result and everything except the ineffectiveness issue, it is more properly a Concurring and Dissenting Opinion.