In the Interest of: W.H.-O., A Minor

CourtSuperior Court of Pennsylvania
DecidedAugust 16, 2019
Docket295 EDA 2019
StatusUnpublished

This text of In the Interest of: W.H.-O., A Minor (In the Interest of: W.H.-O., A Minor) 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 Interest of: W.H.-O., A Minor, (Pa. Ct. App. 2019).

Opinion

J-S42032-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: W.H.-O., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: W.H., FATHER : : : : : No. 295 EDA 2019

Appeal from the Order Entered December 19, 2018 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0002549-2015, FID: 51-FN-002091-2015

IN THE INTEREST OF: W.M.H.-O., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: W.H., FATHER : : : : : No. 297 EDA 2019

Appeal from the Decree Entered December 19, 2018 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000045-2018, FID: 51-FN-002091-2015

BEFORE: OTT, J., KUNSELMAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.: FILED AUGUST 16, 2019

Appellant, W.H. (“Father”), appeals from the decree entered

December 19, 2018, that involuntarily terminated his parental rights to his

biological child, W.H.-O. (“Child”), born August 2015, and from the order that

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S42032-19

changed the Child’s permanency goal from reunification with Father to

adoption.1 We affirm.

The facts and procedural history underlying this appeal are as follows.

On September 17, 2015, the Philadelphia Department of Human Services

(“DHS”) obtained a shelter care order for Child, after Mother and Child were

evicted from the home of Mother’s relatives, where they had been staying.

On October 26, 2015, Child was adjudicated dependent and committed to the

custody of the DHS for placement in foster care, and Father was granted twice

weekly supervised visitation. Order of Adjudication and Disposition – Child

Dependent, 10/26/2015.

Permanency review hearings were held on January 26 and April 26,

2016. At the conclusion of the latter hearing, the trial court found that Father

was incarcerated and had attended only a single visit with Child. Permanency

Review Order (“PRO”), 4/26/2016. Father was released from incarceration in

August 2016 and appeared in person at the permanency review hearing on

September 26, 2016. N.T. at 8, 34; PRO, 9/26/2016. On October 13, 2016,

Father was referred to the Achieving Reunification Center for housing and

employment services, but he declined job training and employment

assistance. Additional permanency review hearings were held on

December 19, 2016, and January 9 and July 10, 2017.

____________________________________________

1Child’s mother consented to the termination of her parental rights and has not participated in this appeal.

-2- J-S42032-19

On September 28, 2017, Father was arrested for aggravated assault,

possession of a controlled substance, and other offenses and was detained on

these charges.2 Due to his incarceration, Father did not attend status review

hearings on October 2 and December 4, 2017. Status Review Order (“SRO”),

10/2/2017; SRO, 12/4/2017.

On January 17, 2018, DHS filed petitions to terminate Father’s parental

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

and to change the Child’s permanency goal from reunification with Father to

adoption. Additional permanency review hearings were held on January 23

and April 23, 2018, which Father again failed to attend due to his

incarceration. PRO, 1/23/2018; PRO, 4/23/2018.

On May 3, 2018, Father pleaded guilty to aggravated assault and

possession of a controlled substance3 and was immediately paroled. On

May 22, 2018, Father was again arrested, charged with burglary4 and related

offenses, and detained on these charges.5

2 Docket Number CP-51-CR-0010701-2017. 3 18 Pa.C.S. § 2702(a) and 35 P.S. § 780-113(a)(16), respectively. 4 18 Pa.C.S. § 3502(a)(1)(ii). 5 At the time of the termination hearing, these charges were still pending. Although we cannot consider any facts that were not before the trial court, we note that, according to the publicly available docket for Docket Number CP-

-3- J-S42032-19

On December 19, 2018, the trial court held a hearing on the termination

and goal change petitions.6 DHS presented the testimony of Tamika Palmer,

a case manager for the community umbrella agency (“CUA”), Turning Points

for Children; Palmer had been continuously assigned to Child’s case since

February 1, 2016. N.T. at 6. Palmer testified that Father had no contact with

her between January 2017 and July 2018 and has never sent Child any cards

or letters7 and that Child was bonded with her foster mother and would not

suffer any irreparable harm if Father’s rights were terminated, “[b]ecause

neither parent[] was actively in her life for the whole three years.” Id. at 28-

33, 35. Palmer also testified that Child has no developmental delays and that

Child’s foster family has made sure that Child’s medical and dental care is up-

51-CR-0005221-2018, on February 1, 2019, Father pleaded guilty to the burglary charge and was immediately paroled to a treatment facility. 6 At the hearing, Child was represented by a guardian ad litem who was also an attorney. See In re L.B.M., 161 A.3d 172, 173-75, 180 (Pa. 2017) (courts must appoint counsel to represent the legal interests of any child involved in a contested involuntary termination proceeding; a child’s legal interests are distinct from his or her best interest, in that a child’s legal interests are synonymous with the child’s preferred outcome, and a child’s best interest must be determined by the court); In re T.S., 192 A.3d 1080, 1089-93 (Pa. 2018) (a child’s statutory right to appointed counsel is not waivable, even where the child is too young or nonverbal to communicate his or her preference; reaffirming the ability of an attorney-guardian ad litem to serve a dual role and to represent a child’s non-conflicting best interests and legal interests); In re G.M.S., 193 A.3d 395, 399-400 (Pa. Super. 2018) (orphans’ court not required to appoint separate attorney to represent children’s legal interests, so long as children’s guardian ad litem was an attorney and children’s legal and best interests did not appear to be in conflict). 7 Palmer stated that Father sent Child “a picture” in 2016. N.T. at 35.

-4- J-S42032-19

to-date. Id. at 30-31. When asked if she “believe[d] it’s in the child’s best

interest to be adopted by her foster parent[,]” Palmer answered affirmatively.

Id. at 30; see also id. at 39.

At the conclusion of Palmer’s direct examination, DHS entered into

evidence DHS Exhibits 17 and 19, without objection. Id. at 34-35. As DHS’s

attorney explained, DHS Exhibit 17 “was a criminal docket pertaining to

[Father] that was printed from the public record on July 12th, 2018[,]” and

DHS Exhibit 19 consisted of “certified judgments of conviction pertaining to

[F]ather . . . with regards to various criminal offenses[.]” Id. Father’s criminal

record began in 1995, and the longest period of time that Father lasted without

a new criminal conviction was five years.

Father testified on his own behalf. He admitted that he was incarcerated

at the time Child “came into care, in the fall of 2015” and “currently” – i.e., at

the time of the termination hearing. Id. at 52-53. He explained to the court:

“I got out, Your Honor, and went back.” Id.

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