In the Int. of: K.B., Appeal of: T.B.

CourtSuperior Court of Pennsylvania
DecidedMarch 21, 2023
Docket2601 EDA 2022
StatusUnpublished

This text of In the Int. of: K.B., Appeal of: T.B. (In the Int. of: K.B., Appeal of: T.B.) 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 the Int. of: K.B., Appeal of: T.B., (Pa. Ct. App. 2023).

Opinion

J-S03003-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: K.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: T.B., FATHER : : : : : No. 2601 EDA 2022

Appeal from the Order Entered September 19, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000208-2020

IN THE INTEREST OF: K.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: T.B., FATHER : : : : : No. 2602 EDA 2022

Appeal from the Decree Entered September 19, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000215-2022

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

MEMORANDUM BY BOWES, J.: FILED MARCH 21, 2023

T.B. (“Father”) appeals from the September 19, 2022 decree granting

the petition filed by the Philadelphia Department of Human Services (“DHS”)

to involuntarily terminate his parental rights to his son, K.B., born in J-S03003-23

January 2020.1 Father also appeals from the September 19, 2022 order

changing K.B.’s permanency goal to adoption pursuant to the Juvenile Act, 42

Pa.C.S. § 6351. We affirm the termination decree and the goal change order.

We summarize the factual and procedural history as follows. DHS

received a referral in January 2020, as a result of Mother giving birth to K.B.

while incarcerated.2 N.T., 9/19/22, at 6-7. Mother had a prior history with

DHS, as well as a history of drug usage and mental illness. Id. at 7. As a

result of positive testing for illegal substances, K.B. was hospitalized for five

weeks for treatment of withdrawal symptoms. Id. at 7-8.

On February 10, 2020, as K.B. was ready for discharge from the

hospital, DHS obtained an Order of Protective Custody (“OPC”) and placed him

with his maternal aunt (“Maternal Aunt”), a pre-adoptive resource. Id. at 8.

Following a shelter care hearing, the court ordered twice weekly supervised

visitation at the agency and an assessment of Father’s home. On May 5, 2020,

the trial court adjudicated K.B. dependent and maintained his placement with

Maternal Aunt, where he has remained. The court established a placement

____________________________________________

1 In separate decrees, the trial court also terminated the parental rights of K.B.’s mother, K.B. (“Mother”), and any unknown father. Neither Mother nor any unknown father appealed those decrees or participated in the instant appeal.

2 Mother did not identify Father or list him on the birth certificate. N.T., 9/19/22, at 8, 25. Nevertheless, Father contacted DHS and participated in all hearings. Id. at 25, 28.

-2- J-S03003-23

goal of return to parent or guardian and continued twice weekly supervised

visitation.

Throughout K.B.’s dependency, Father was required to satisfy the

following permanency objectives aimed at reunification: 1) comply with

services, supervised visitation, and all court orders; 2) provide proof of income

and adequate housing; and 3) complete a Behavioral Health Services (“BHS”)

evaluation, a Clinical Evaluation Unit (“CEU”) assessment, three random drug

screens, and a parenting program at Achieving Reunification Center (“ARC”).

Id. at 28. The court further directed Father to, inter alia, sign releases and

provide medical documentation. Id. at DHS Exhibit 3, Permanency Review

Order, 12/6/21.3

The juvenile court characterized Father’s compliance with the

permanency plan as vacillating between minimal and moderate. Notably,

Father neglected to participate in a second behavioral health evaluation, as

ordered in December 2021, until April 2022. Id. at 32, 60. He failed to

provide proof of income, and, despite signing releases, he failed to provide

medical documentation. Id. at 28-29, 38, 51-52, 54, 61, 63. Further,

Father’s visitation, which remained supervised and was reduced by the court

to weekly in December 2021, was inconsistent, with a ten-month interruption

between October 18, 2021, and August 10, 2022. Id. at 38, 41, 55, 97.

3 While there appears to be a missing page or two from DHS Exhibit 3, we observe that the dependency record is part of the certified record.

-3- J-S03003-23

On March 31, 2022, DHS filed a petition for the termination of parental

rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), as well as

a petition for a change of K.B.’s permanency goal from reunification to

adoption. The trial court held a hearing on the petitions on September 19,

2022. Mother and Father were each present and represented by counsel.

K.B., then thirty-two months old, was represented by Emily Cherniack,

Esquire.4 DHS presented the testimony of Anajah Custus, the case manager

with community umbrella agency (“CUA”).5 Attorney Cherniack presented the

testimony of Patricia Kinkle, the Court Appointed Special Advocate (“CASA”)

program director.6 Mother and Father each testified on their own behalf.

At the time of the hearing, Mother and Father were residing together

with a younger child, who is not part of the instant proceedings. Mother was

serving as Father’s home health care aide. Id. at 9-11, 30. As it relates to

4 Attorney Cherniack was identified as both the guardian ad litem (“GAL”) and the child advocate. Our Supreme Court has instructed this Court to verify sua sponte that the court appointed counsel to represent a child pursuant to 23 Pa.C.S. § 2313(a), and if counsel served in a dual role, that the court determined before appointment that there was no conflict between a child’s best and legal interests. See In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020). If a child is “too young to be able to express a preference as to the outcome of the proceedings,” there is no conflict between a child’s legal and best interests, and a child’s subsection 2313(a) right to counsel is satisfied by an attorney- GAL who represents the attorney-GAL’s view of the child’s best interests. See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018). In this case, because K.B. was 32 months old at the time of the subject proceeding, we conclude that his statutory right to counsel was satisfied.

5 The notes of testimony incorrectly identify Ms. Custus’ first name as Amajah.

6 The notes of testimony misname Ms. Kinkle as Ms. Kinchloe.

-4- J-S03003-23

one aspect of Father’s argument, Father testified that he has disintegrating

disc disease and numerous herniated discs, as well as diabetes, high blood

pressure, and weight issues. Id. at 101, 107. He explained, “Sometime I

might need help cooking, sometime I might need help putting my clothes on.

It depends on how I feel at the particular time, you know.” Id. at 115.

On September 19, 2022, the trial court involuntarily terminated Father’s

parental rights to K.B. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and

(b) and by separate order the court changed K.B.’s permanency goal from

reunification to adoption. Father timely filed notices of appeal, along with

concise statements of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). This Court consolidated the appeals sua sponte.

Father presents the following issues, which we reorder for ease of

disposition:

A. Whether the trial court committed reversible error when it involuntarily terminated [Father]’s parental rights where such determination was not supported by clear and convincing evidence under the Adoption Act[,] 23 [Pa.C.S.

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