In Re: N.E.-M., A Minor, Appeal of: M.P.

CourtSuperior Court of Pennsylvania
DecidedAugust 6, 2018
Docket222 WDA 2018
StatusUnpublished

This text of In Re: N.E.-M., A Minor, Appeal of: M.P. (In Re: N.E.-M., A Minor, Appeal of: M.P.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re: N.E.-M., A Minor, Appeal of: M.P., (Pa. Ct. App. 2018).

Opinion

J-S38014-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: N.E.-M., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: M.P., NATURAL MOTHER : : : : : : No. 222 WDA 2018

Appeal from the Order Entered January 11, 2018 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000025-2016, CP-02-AP-025-2016

BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.: FILED AUGUST 06, 2018

M.P. (“Mother”) appeals from the order entered January 11, 2018 in the

Court of Common Pleas of Allegheny County, that granted the petition of the

Allegheny County Office of Children, Youth and Families (“CYF”), and

involuntarily terminated her parental rights to her son, N.E.-M.1 After careful

review, we affirm.

N.E.-M. was born in February 2014. In addition to N.E.-M., Mother has

two other sons with M.E.-M. (“Father”), A.E.-M. (born June 2010), and A.I.E.-

M. (born July 2016). CYF became involved with N.E.-M. in June 2014, due to

concerns about N.E.-M. receiving inappropriate medical care, his weight,

failure to thrive, and possible neglect, as well as Mother’s substance abuse

____________________________________________

1 The order, which is dated December 15, 2017, also terminated the parental rights of the child’s father, M.E.-M, who did not appeal. ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S38014-18

history. N.T., 7/21/17, at 130. CYF investigated and attempted to work with

N.E.-M.’s family to ensure Mother and Father made and attended medical

appointments, N.E.-M. gained appropriate weight, and the family followed

through with all medical recommendations. Id. at 132. Subsequently, CYF

became aware Mother was hospitalized in a coma. Id. at 132, 137. Based

on prior concerns of domestic abuse, CYF scheduled a follow-up meeting with

the family on August 8, 2014, to perform a safety assessment. Id. at 132-

33. During the visit, the two caseworkers became concerned that Father was

impaired as Father slurred his speech throughout the visit. Id. at 133. Father

reported that he took several Xanax. Id. He appeared unresponsive to the

children, as the caseworkers needed to repeatedly prompt Father to pay

attention to N.E.-M., who was crying. Id. at 133-34. Further, N.E.-M. was

underfed and Father made concerning comments regarding missed medical

appointments. Id. As a result, CYF scheduled a doctor’s appointment for the

afternoon of August 8th. Id. at 134.

CYF staff took Father and N.E.-M. to the doctor’s appointment. Id. at

135. The appointment revealed N.E.-M. had lost additional weight, and he

needed to go to Children’s Hospital to be admitted for an evaluation. Id. at

136. CYF offered to take Father and N.E.-M. to the hospital. Id. Father

became resistant and angry. Id. He gave N.E.-M. to the CYF staff so they

could transport N.E.-M. to the hospital. Id. at 137. Father left the room and

became physically aggressive in the hallway. Id. Eventually, the police were

called. Id. Due to safety concerns, CYF obtained an emergency custody

-2- J-S38014-18

authorization, and transported N.E.-M. to the hospital. Id. The hospital

admitted N.E.-M. for treatment. Id. On August 11, 2014, the trial court

entered a shelter care order transferring legal and physical custody of N.E.-M.

to CYF. The trial court adjudicated N.E.-M. dependent on September 24,

2014. N.E.-M. has not returned to Mother’s care, and has resided in his

current, pre-adoptive foster home since September 2015. Id. at 151.

On February 18, 2016, CYF filed a petition for the involuntary

termination of Mother’s and Father’s parental rights to N.E.-M. By order dated

May 24, 2017, the trial court appointed KidsVoice, the guardian ad litem

appointed during the prior juvenile proceeding, as counsel for N.E.-M., then

three years old. However, apparently in reaction to the child’s subsequent

statement to the court-appointed psychologist that he might like to visit his

parents in their home, KidsVoice filed an emergency motion to withdraw from

representation. On September 26, 2017, the trial court granted the motion

summarily and appointed the Office of Conflict Counsel as legal counsel

pursuant to 23 Pa.C.S. § 2313(a).

The trial court conducted hearings on CYF’s petition on July 21, 2017,

December 8, 2017, and December 15, 2017. CYF presented the testimony of,

inter alia, Kaitlyn Leo, the CYF caseworker, and Patricia Pepe, Ph.D., the court-

appointed psychologist who performed a series of psychological and

interactional evaluations and issued six reports on the family. Mother did not

testify. N.E.-M.’s counsel did not call any witnesses, but he cross-examined

-3- J-S38014-18

CYF’s witnesses and argued in favor of terminating Mother’s parental rights. 2

By order dated December 15, 2017, and entered January 11, 2018, the trial

court involuntarily terminated Mother’s parental rights to N.E.-M. pursuant to

23 Pa.C.S. § 2511(a)(2), (5), (8), and (b).

Thereafter, on February 9, 2018, Mother filed a timely notice of appeal,

along with a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i). ____________________________________________

2 Our recent jurisprudence obligates counsel appointed under § 2313(a) to inquire as to the preference of his client, and we typically vacate the termination decree and remand for additional proceedings when the certified record does not demonstrate that counsel has made a satisfactory effort to make that determination. See e.g., In re T.M.L.M., 184 A.3d 585 (Pa.Super. 2018) (remand for appointment of counsel due to attorney’s failure to interview 6 year-old child to ascertain child’s preferred outcome); In re Adoption of M.D.Q., __ A.3d __, 2018 WL 3322744 (Pa.Super. 2018) (remanded to determine preference of 6 year-old child); In re Adoption of D.M.C., __ A.3d __, 2018 WL 3341686 (Pa.Super. 2018) (remand to ensure representation of 14 year-old child’s preference—telephone conversation was insufficient for attorney to determine preference and properly advocate for child’s legal interests).

However, unlike each of the foregoing cases, where remand was necessary to determine the preferences of two 6 year olds and a teenager, it is unlikely that the three-year-old child in the case at bar is capable of providing any input about his preferred outcome in this case, much less actually articulating a preference in favor of preserving parental rights. Indeed, the only hint of a preference occurred when, in the presence of Mother and Father, three-year- old, N.E.-M. identified his foster parents as his “family,” and noted a desire to visit Mother and Father at their home. In light of counsel’s presumptive effectiveness and mindful that some of the supervised visitations had occurred at Mother’s home, we do not interpret the child’s isolated remark as indicative of a preference. Thus, we discern no reason to remand the case for further proceedings. See In re D.L.B., 166 A.3d 322, 329 (Pa. Super. 2017) (there is no conflict between a child’s best and legal interests when child is unable to express preferred outcome).

-4- J-S38014-18

Mother raises the following issue for review:

1.

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