In the Int. of: R.B., Appeal of: S.B.

• Court: Superior Court of Pennsylvania
• Decided: April 4, 2025
• Docket: 2972 EDA 2024
• Status: Unpublished

Opinion

J-S05015-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: R.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: S.B., MOTHER : : : : : No. 2972 EDA 2024

Appeal from the Order Entered October 8, 2024 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000299-2022

IN THE INTEREST OF: R.C.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: S.B., MOTHER : : : : : No. 2973 EDA 2024

Appeal from the Decree Entered October 8, 2024 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000381-2024

BEFORE: BOWES, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED APRIL 4, 2025

S.B. (“Mother”) appeals from the decree entered on October 8, 2024

that involuntarily terminated her parental rights to her biological daughter,

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* Former Justice specially assigned to the Superior Court. J-S05015-25

R.B. a/k/a R.C.B. (“R.B.”), who was born in March 2022.1 Separately, Mother

also appeals the order entered on October 8, 2024, which changed R.B.’s

permanency goal from reunification to adoption. 2 We affirm.

The Philadelphia Department of Human Services (“DHS” or “the

Agency”) first became involved with this family in May 2018, when Mother’s

older daughter and R.B.’s sibling, A.B., was removed from Mother’s care due

to Mother’s “substance abuse issues.” Dependency Petition, 3/30/22, at

¶ 5(d). Thereafter, both Mother and R.B. tested positive for phencyclidine

(“PCP”) at the time of R.B.’s birth in March 2022. See N.T., 10/8/24, at 5.

On March 25, 2022, DHS was granted emergency protective custody of R.B.

upon her release from the hospital. This placement was confirmed at a shelter

care hearing three days later. On April 4, 2022, the trial court adjudicated

R.B. dependent and established her initial permanency goal as reunification

with Mother. R.B. was placed in kinship care with her maternal cousin, E.B.,

who is a pre-adoptive resource. See id. at 12. We note that R.B. has been

1 Mother named S.W. (“Father”) as R.B.’s biological father, although he does not appear on R.B.’s birth certificate. No other individual has ever come forward to challenge Mother’s assertion of paternity. Father’s location was unknown throughout these proceedings and there is no indication that he ever participated in either the underlying dependency or termination matters. On October 8, 2024, the trial court filed decrees that involuntarily terminated the parental rights of Father and any unknown father. Neither Father nor any other individual appealed these separate termination decrees.

2 On December 3, 2024, this Court sua sponte consolidated the above- captioned cases pursuant to Pa.R.A.P. 513 due to the presence of closely “related parties and issues” in both matters. Order, 12/3/24, at 1.

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diagnosed with Angelman syndrome, which impedes her ability to

communicate. See id. at 13.

In furtherance of reunification, the court directed Mother to, inter alia,

participate in parenting classes, undergo dual diagnosis for mental health and

substance abuse concerns, and submit to random drug testing. Thereafter,

the community umbrella agency (“CUA”) assigned to Mother’s case referred

her for mental health, substance abuse, and anger management treatment.

See id. at 7. Between September 2022 and July 2024, the court held regular

permanency review hearings, during which time Mother’s compliance and

progress was largely minimal. Specifically, the court was repeatedly forced to

reinitiate Mother’s referrals to parenting classes and services related to her

mental health, substance abuse, and anger management concerns on multiple

occasions. She ceased attending permanency review hearings as of December

2022.

Mother was initially represented in the dependency proceedings by her

court-appointed counsel, Neil Marc Krum, Esquire. The court also appointed

Lisa Marie Visco, Esquire, to act as R.B.’s guardian ad litem (“GAL”). On June

11, 2024, the court appointed Jacqueline M. Chandler, Esquire, to replace

Attorney Krum as Mother’s counsel in the dependency proceedings. The last

such hearing that occurred prior to these subject proceedings was on July 16,

2024. The same day, the court scheduled the next permanency review

hearing for October 8, 2024.

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On September 27, 2024, DHS filed a petition to involuntarily terminate

Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8),

and (b).3 The same day, the Agency also filed a petition to change R.B.’s

permanency goal to adoption. The certificates of service attached to these

filings and the relevant dockets indicate that the Agency served copies of both

petitions upon Attorney Chandler and the GAL.

On September 30, 2024, the trial court scheduled a joint hearing on

both petitions for October 8, 2024, the date previously reserved for the

permanency review hearing. During the consolidated termination/goal change

hearing, the Agency presented the testimony of CUA case manager Danita

Garison Lyburn. Mother did not appear for the hearing and, consequently, did

not testify. Attorney Chandler participated in the hearing on behalf of Mother

3 Although the trial court did not appoint counsel for R.B. pursuant to 23 Pa.C.S. § 2313(a), GAL appeared on her behalf and represented her at the joint hearing. Our Supreme Court has held that the mandate of § 2313(a) is satisfied where the court has “appointed a [GAL] who represents the child’s best interests” in the proceedings and the child’s preferred outcome is “incapable of ascertainment because the child is very young and pre-verbal” such that there can be no conflict between their legal interests and best interests.” In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018). Insofar as R.B. was two years old and has been diagnosed with a developmental disability that impedes her ability to effectively communicate, we find no structural error in this case. Id.; see also In re Adoption of K.M.G., 240 A.3d 1218, 1238 (Pa. 2020) (charging this Court to engage in “limited sua sponte review of whether children have been afforded their statutory right to legal counsel when facing the potential termination of their parents’ parental rights.”).

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with respect to both petitions.4 Immediately after the hearing, the trial court

filed a decree that involuntarily terminated Mother’s parental rights and a

separate order that changed R.B.’s permanency goal to adoption.

On November 6, 2024, Mother filed timely notices of appeal and concise

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

1925(a)(2)(i) at both cases.5 On November 27, 2024, the trial court filed a

responsive Rule 1925(a)(2)(ii) opinion.

Mother has raised one issue: “Whether the court erred in finding that

DHS had made reasonable efforts as to service. Mother’s due process rights

were violated when [the] Philadelphia Solicitor’s [O]ffice failed to serve notice

of the termination of parental rights and goal change to adoption petitions to

4 This Court may raise questions regarding an indigent parent’s right to counsel pursuant to 23 Pa.C.S. § 2313(a.1) sua sponte. See In re X.J., 105 A.3d 1, 4 (Pa.Super. 2014). We note that Attorney Chandler was never appointed at, nor entered her appearance in, the termination case. Nonetheless, this Court has previously countenanced situations in which an attorney appointed to represent a parent in a dependency action subsequently represents them in a termination of parental rights hearing without a formal appointment. See In re Adoption of L.B., 258 A.3d 506, 2021 WL 2396340, at *14-*15 (Pa.Super. 2021) (non-precedential decision); see also, e.g., Commonwealth v. D’Amato, 856 A.2d 806, 822 (Pa. 2004) (holding that criminal defendant’s right to counsel was not violated when an attorney who had not formally entered their appearance nonetheless represented the defendant during a critical stage of the criminal trial). Consequently, we find no deficiency with respect to Mother’s representation at the hearing. 5 These filings erroneously list Attorney Chandler as the appealing party. Accordingly, the trial court refers to Mother as “J.C.” throughout its Rule 1925(a)(2)(ii) opinion. See generally Trial Court Opinion, 11/27/24, at 1-6.

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[M]other at her last known address.”6 Mother’s brief at 3. We review

termination decrees and permanency goal change orders for an abuse of

discretion. See Interest of Z.N.B., 327 A.3d 241, 247-48 (Pa.Super. 2024);

Interest of Z.B., 315 A.3d 153, 160 (Pa.Super. 2024).

Although Mother has styled her arguments concerning the alleged lack

of notice as encompassing both of the above-captioned cases, her arguments

solely discuss the requirements of notice with respect to termination of

parental rights proceedings. See Mother’s brief at 7-10. To the extent that

Mother intended to challenge notice with respect to the goal change petition,

we conclude that she has waived any such argument for lack of development.

See Interest of R.H., 320 A.3d 706, 716 (Pa.Super. 2024) (holding that a

party waives a claim by failing to provide “citation to relevant authority” or “to

develop the issue with any particularity”). Accordingly, we will solely address

Mother’s claim concerning notice of the termination petition and hearing.

In pertinent part, Mother’s argument is best summarized as follows:

“Parents’ parental rights should not be terminated, when they were not duly

6 In her brief, Mother has raised for the first time an argument concerning the merits of the trial court’s termination decree pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). See Mother’s brief at 10-14. Critically, however, Mother failed to include this claim in her Rule 1925(a)(2)(i) and (b) statement, which includes only the claim related to notice of the underlying petitions. See Concise Statement, 11/6/24, at 1 (unpaginated). Accordingly, Mother has waived all potential claims related to the trial court’s findings pursuant to § 2511(a) and (b). See Pa.R.A.P. 1925(b)(4)(vii); In re K.C., 903 A.2d 12, 16-17 (Pa.Super. 2006).

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and properly served with notice of the termination trial and the grounds for

termination of their parental rights.” Mother’s brief at 7. DHS counters that

Mother waived this claim in the trial court by failing to object to the allegedly

defective notice at the termination hearing. See DHS brief at 10-12.

It is well-settled that “any individual whose parental rights are to be

terminated must be afforded due process.” In re Adoption of K.M.D., 261

A.3d 1055, 1059 (Pa.Super. 2021). In this context, “[d]ue process requires

nothing more than adequate notice, an opportunity to be heard, and the

chance to defend oneself in an impartial tribunal having jurisdiction over the

matter.” Id. The Adoption Act requires that “[a]t least ten days’ notice shall

be given to the parent or parents . . . whose rights are to be terminated, by

personal service or by registered mail to his or their last known address or by

such other means as the court may require.” 23 Pa.C.S. § 2513(b); see also

Pa.O.C.R. 15.4(a)(3). Rule 15.4(b)(3)(A)(iii) also allows for notice of the

hearing to be provided by electronic transmission. The Orphans’ Court Rules

similarly require that notice be provided at least ten days prior to the

termination hearing. See Pa.O.C.R. 15.4(c). Finally, an agency must

undertake a “good faith” effort to provide a targeted parent with notice of a

termination hearing. K.M.D., 261 A.3d at 1060 (internal citations omitted).

Overall, the party petitioning for termination “bears the burden to prove

proper service by its affirmative act.” Id.

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Although Mother asserts in this Court that the Agency failed to provide

her with adequate notice of these proceedings, we note that Mother’s counsel

affirmed during the hearing that Mother had, in fact, received notice:

THE COURT: . . . I do not see [Mother]. Do we have good service?

[AGENCY ATTORNEY]: Yes, Your Honor. We did a parent locator search for [M]other. Notice was delivered to [M]other via personal – deliver to [M]other’s address via person[al] service and via overnight and regular mail. Mother also verbally confirmed to CUA that she knew of today’s hearing. I don’t believe there’s any objection to – for service?

THE COURT: Ms. Chandler?

[ATTORNEY CHANDLER]: That’s correct, Your Honor.

N.T., 10/8/24, at 4-5 (emphasis added).

As this Court has previously stated, a party waives claims regarding

sufficiency of notice in termination of parental rights proceedings when their

attorney subsequently participates in the termination hearing without

objecting to the allegedly defective notice. See In re Adoption of W.C.K.,

748 A.2d 223, 228 (Pa.Super. 2000), overruled on other grounds, In re

Adoption of Z.S.H.G., 34 A.3d 1283, 1287-89 (Pa.Super. 2011); see also

Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot

be raised for the first time on appeal.”). Instantly, Mother’s attorney not only

failed to raise an objection but affirmed that her client had, in fact, received

notice of the at-issue proceedings. The fact that Mother’s claim raises a due

process concern is of no moment because Pennsylvania law permits

constitutional issues to be waived. See, In re J.M.Y., 218 A.3d 404, 417 (Pa.

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2019) (observing, “[e]ven constitutional challenges must be brought in a

manner specified by law . . . or else they are waived.”). As there are no

properly preserved issues for our review, we affirm both the order changing

R.B.’s permanency goal to adoption and the decree terminating Mother’s

parental rights.

Order affirmed. Decree affirmed.

Date: 4/4/2025

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