J-S39044-17

                                  2018 PA Super 202

    IN RE: J.T.M., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: B.L.M., NATURAL                 :
    FATHER                                     :   No. 367 WDA 2017

                    Appeal from the Decree February 7, 2017
                  In the Court of Common Pleas of Blair County
                     Orphans’ Court at No(s): 2016 AD 52-A

BEFORE:      BENDER, P.J.E., BOWES, and STRASSBURGER*, JJ.

OPINION BY STRASSBURGER, J.:                               FILED JULY 11, 2018

        B.L.M. (Father) appeals from the decree entered February 7, 2017, in

the Court of Common Pleas of Blair County, which terminated involuntarily

his parental rights to his minor son, J.T.M. (Child), born in June 2000.1 We

affirm.

        The record reveals that Blair County Children, Youth and Families

(CYF) has a lengthy history of involvement with Child, dating back to 2012.

N.T., 1/25/2017, at 7. Child entered foster care on January 28, 2016, due

to allegations that Mother was neglecting the medical needs of Child’s half-

sister, and due to allegations that Mother took the children with her to

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*   Retired Senior Judge assigned to the Superior Court.

1 The orphans’ court entered a separate decree on February 9, 2017,
confirming the consent of Child’s mother, N.K. (Mother), and terminating her
parental rights. Mother did not file a Brief in connection with this appeal,
nor did she file her own separate appeal.
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purchase “illicit substances.” Application for Emergency Protective Custody,

1/28/2016, at 3. Father was not available to care for Child at that time, as

he had been incarcerated since approximately 2014.           N.T., 1/25/2017, at

39. Child was adjudicated dependent by order entered February 17, 2016.2

       On December 8, 2016, CYF filed a petition to terminate Father’s

parental rights to Child involuntarily.          The orphans’ court conducted a

termination hearing on December 20, 2016, January 25, 2017, and February

6, 2017. Following the hearing, on February 7, 2017, the court entered a

decree terminating Father’s parental rights. Father timely filed a notice of

appeal on February 22, 2017, along with a concise statement of errors

complained of on appeal.

       Father now raises the following issues for our review.

       I. Whether a remand is necessary, in order to appoint counsel
       for the child?

       II. Whether the evidence is sufficient to show that the Father
       abandoned his [p]arental [r]ole?

       III. Whether the evidence establishes that [] Father is incapable
       of providing parental care[?]

Father’s Brief at 6 (orphans’ court answers omitted).

       We review Father’s issues mindful of our well-settled standard of

review.
____________________________________________


2 Aggravated circumstances were found as to Father on September 21,
2016, due to Father’s failure to maintain contact. Child’s permanency goal
was changed to adoption by a separate order entered that same day.



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     The standard of review in termination of parental rights cases
     requires appellate courts to accept the findings of fact and
     credibility determinations of the trial court if they are supported
     by the record. If the factual findings are supported, appellate
     courts review to determine if the trial court made an error of law
     or abused its discretion. A decision may be reversed for an
     abuse of discretion only upon demonstration of manifest
     unreasonableness, partiality, prejudice, bias, or ill-will. The trial
     court’s decision, however, should not be reversed merely
     because the record would support a different result. We have
     previously emphasized our deference to trial courts that often
     have first-hand observations of the parties spanning multiple
     hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

     In his first issue, Father argues that the orphans’ court erred by failing

to appoint counsel to represent Child’s legal interests pursuant to 23 Pa.C.S.

§ 2313(a) and our Supreme Court’s recent holding in In Re Adoption of

L.B.M., 2017 Pa. LEXIS 1150, 2017 WL 2257203 (Pa. 2017).                 Father

acknowledges that Child had the benefit of a guardian ad litem (GAL) during

the termination proceedings, but contends that “the statutory requirement

for ‘counsel’ in a contested termination case is not satisfied by the

appointment of a GAL[.]” Father’s Brief at 11.

     Initially, we observe that Father did not raise this claim before the

orphans’ court, and failed to include it in his concise statement of errors

complained of on appeal. Under normal circumstances, this would result in

waiver. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”); Krebs v. United

Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (citations

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omitted) (“[A]ny issue not raised in a statement of matters complained of on

appeal is deemed waived.”).

      However, Father contends that this claim cannot be waived, and

directs our attention to In re Adoption of G.K.T., 75 A.3d 521 (Pa. Super.

2013).   In that case, the appellant father argued that the orphans’ court

erred by failing to appoint counsel for G.K.T. pursuant to Section 2313(a).

Id. at 525-26.   We held that the appellant did not waive this claim, even

though he failed to raise it before the court. Id. at 526. We explained, “The

right to counsel belongs to the child, and there is no appointed counsel for

the child who could have raised the child’s rights in the proceedings before

the [orphans’] court.” Id. (quoting In re E.F.H., 751 A.2d 1186, 1189 (Pa.

Super. 2000)).

      Applying G.K.T. to the facts of this case, we agree that Father cannot

waive Child’s right to counsel. Therefore, we proceed to address the merits

of this issue. Section 2313(a) provides as follows.

      (a) Child.--The court shall appoint counsel to represent the
      child in an involuntary termination proceeding when the
      proceeding is being contested by one or both of the parents.
      The court may appoint counsel or a guardian ad litem to
      represent any child who has not reached the age of 18 years and
      is subject to any other proceeding under this part whenever it is
      in the best interests of the child. No attorney or law firm shall
      represent both the child and the adopting parent or parents.

23 Pa.C.S. § 2313(a).

      In L.B.M., our Supreme Court held that Section 2313(a) requires

courts to appoint counsel to represent the legal interests of any child


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involved in a contested involuntarily termination proceeding.           2017 Pa.

LEXIS 1150 at 16; 2017 WL 2257203 at 6.            The Court explained that a

child’s legal interests are distinct from his or her best interests, in that a

child’s legal interests are synonymous with the child’s preferred outcome,

and a child’s best interests must be determined by the court.           2017 Pa.

LEXIS 1150 at 2-3; 2017 WL 2257203 at 1.

      Importantly, the justices disagreed on whether an attorney who serves

as a child’s dependency GAL can also serve as that child’s counsel during

contested involuntary termination proceedings. In the Court’s lead opinion,

Justice Wecht, joined by Justices Donohue and Dougherty, opined that a

child’s legal interests cannot be represented by his or her dependency GAL.

2017 Pa. LEXIS 1150 at 16-19; 2017 WL 2257203 at 7.               However, the

Court’s remaining four justices disagreed with that portion of the lead

opinion, and opined in a series of concurring and dissenting opinions that a

child’s dependency GAL may serve as his or her counsel, so long as the

GAL’s dual role does not create a conflict of interest. 2017 Pa. LEXIS 1150

at 23-47; 2017 WL 2257203 at 9. Thus, in this case, we conclude that the

orphans’ court was not required to appoint a separate attorney to represent

Child’s legal interests, so long as Child’s GAL was an attorney, and so long

as Child’s legal and best interests did not appear to be in conflict.

      Upon review, it is clear that Child’s legal interests and best interests

were aligned throughout the termination proceedings. During the hearing,

on December 30, 2016, Child informed the orphans’ court that he did not

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want to be placed in Father’s care, and that he hoped to live in a foster

home and be adopted after leaving his current residential treatment facility.

N.T., 12/30/2016, at 18.3 Child’s GAL, Gary A. Caldwell, Esquire, argued on

behalf of Child’s position during the hearing, and filed a brief before this

Court supporting the termination of Father’s parental rights. Thus, Attorney

Caldwell represented both Child’s articulated legal interest and what

Attorney Caldwell viewed as Child’s best interests.     Since these interests

were aligned, no conflict existed that would warrant the appointment of

separate legal counsel for Child. Therefore, no remand is necessary.4

       We next consider Father’s second and third issues, in which he argues

that the orphans’ court abused its discretion by terminating his parental

rights.   Termination of parental rights is governed by Section 2511 of the
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3 As the orphans’ court noted in its 1925(a) opinion, “The subject child has
specifically indicated through his direct testimony in court, and through his
treating therapists, that he does not want to live with … Father or have any
contact with him.” Orphans’ Court Opinion, 3/3/2017, at 10.

4 The author of this Opinion dissented in L.B.M. to opine that the language
of Section 2313(a) “suggest[ed] that the legislature intended to differentiate
between legal counsel and GAL in TPR proceedings,” and favored remand for
a new hearing with the appointment of legal counsel because “the difference
between the child’s interests and the best interest of the child is staggering,
and it is readily apparent that a GAL appointed to represent the [children’s]
interests in the dependency proceedings cannot advocate effectively on the
[children’s] behalf with respect to issues raised surrounding the TPR and
adoption without creating a conflict.” In re: Adoption of L.B.M., 2016 WL
3080124 at *34 (Pa. Super. May 31, 2016) (unpublished) (Strassburger, J.,
dissenting). The author agrees with the position taken by Justice Wecht in
the Supreme Court’s Opinion, but is bound to follow the reasoning of the
four justices as discussed above.



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Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated

analysis.

       Initially, the focus is on the conduct of the parent. The party
       seeking termination must prove by clear and convincing
       evidence that the parent’s conduct satisfies the statutory
       grounds for termination delineated in Section 2511(a). Only if
       the court determines that the parent’s conduct warrants
       termination of his or her parental rights does the court engage in
       the second part of the analysis pursuant to Section 2511(b):
       determination of the needs and welfare of the child under the
       standard of best interests of the child. One major aspect of the
       needs and welfare analysis concerns the nature and status of the
       emotional bond between parent and child, with close attention
       paid to the effect on the child of permanently severing any such
       bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

       In this case, the orphans’ court terminated Father’s parental rights

pursuant to Sections 2511(a)(1), (2), and (b).    We need only agree with the

orphans’ court as to any one subsection of Section 2511(a) in order to

affirm.     In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc),

appeal denied, 863 A.2d 1141 (Pa. 2004).         Here, we analyze the court’s

decision to terminate under Sections 2511(a)(1), which provides as follows. 5

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5 In his concise statement of errors complained of on appeal, statement of
questions involved, and in the argument section of his Brief, Father
challenges the termination of his parental rights pursuant to Section
2511(a)(1) and (2).     Father does not raise any challenge as to the
termination of his parental rights pursuant to Section 2511(b). Therefore,
we conclude that Father preserved a challenge as to Section 2511(a) only,
and that any challenge as to Section 2511(b) is waived. See In re
M.Z.T.M.W., 2017 Pa. Super. LEXIS 360, 2017 WL 2153892 (Pa. Super.
(Footnote Continued Next Page)


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      (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 immediately preceding the filing
             of the petition either has evidenced a settled purpose
             of relinquishing parental claim to a child or has
             refused or failed to perform parental duties.

23 Pa.C.S. § 2511(a)(1).

      To meet the requirements of this section, “the moving party must

produce clear and convincing evidence of conduct, sustained for at least the

six months prior to the filing of the termination petition, which reveals a

settled intent to relinquish parental claim to a child or a refusal or failure to

perform parental duties.”       In re Z.S.W., 946 A.2d 726, 730 (Pa. Super.

2008) (citing In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super.

2006)). The court must then consider “the parent’s explanation for his or

her conduct” and “the post-abandonment contact between parent and child”

before moving on to analyze Section 2511(b). Id. (quoting In re Adoption

of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998)).

      This Court has explained that a parent does not perform his or her

parental duties by displaying a “merely passive interest in the development


(Footnote Continued) _______________________

2017) (holding that the appellant waived her challenge to Section 2511(b)
by failing to include it in her concise statement and statement of question
involved, and that the appellant abandoned any challenge to Section
2511(a)(2) and (5)).



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of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal

denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462

(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)).                Rather,

“[p]arental duty requires that the parent act affirmatively with good faith

interest and effort, and not yield to every problem, in order to maintain the

parent-child relationship to the best of his or her ability, even in difficult

circumstances.”   Id.   (citation omitted).    Critically, incarceration does not

relieve a parent of the obligation to perform parental duties.                    An

incarcerated   parent   must   “utilize   available   resources   to   continue    a

relationship” with his or her child. In re Adoption of S.P., 47 A.3d 817,

828 (Pa. 2012) (discussing In re Adoption of McCray, 331 A.2d 652 (Pa.

1975)).

      In the instant matter, the orphans’ court found that Father refused

and/or failed to perform his parental duties, as Father did not make

reasonable efforts to remain a part of Child’s life. Orphans’ Court Opinion,

3/3/2017, at 16. The court explained that Father sent a single letter to Child

during his dependency. Id. While Father had his sister contact Child on his

behalf, this contact was “very limited.” Id.

      Father argues that he visited with Child regularly prior to his

incarceration in 2014. Father’s brief at 13. Father further argues that he

attempted to maintain contact with Child following his incarceration by

sending letters and cards, and by having family members contact Child on


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his behalf.   Id.     Father emphasizes that Child’s former foster mother

prevented him from contacting Child starting in March 2016, and that the

order adjudicating Child dependent prevented Father from having visits with

Child after his release. Id.

      The record supports the findings of the orphans’ court.     During the

termination hearing, the court heard the testimony of Child, who participated

via telephone from his residential treatment facility.    Child informed the

court that he last saw Father “[a]bout two years ago.” N.T., 12/20/2016, at

17. Child explained that Father was not actually caring for him at that time,

but that he was only seeing Father “here and there.” Id. Child recalled that

he has not seen Father since his incarceration, and that his last contact with

Father was a letter sent to the home of his former foster mother, W.D.

(Foster Mother). Id. at 16-17.

      In addition, CYF presented the testimony of Foster Mother.       Foster

Mother testified that Child resided in her home from January 28, 2016, until

July 29, 2016.      N.T., 2/6/2017, at 36.   Concerning Father’s attempts at

contacting Child, Foster Mother testified that Child received a single letter

from Father. Id. at 39. In addition, Father’s sister called Foster Mother’s

home “once possibly twice,” and sent Child a letter along with a box of

Easter candy. Id. at 37, 39. Foster Mother acknowledged that she did not

provide the letters to Child, nor she did allow Father’s sister to speak with

Child on the phone. Id. at 39-40, 42. Foster Mother explained that she was


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advised by Child’s therapist in March 2016 that Child should not have any

contact with his biological family.6 Id. at 36, 41-42.

       Concerning Father’s contact with CYF, the orphans’ court heard the

testimony of caseworker, Paige McCarthy. Ms. McCarthy testified that Father

contacted CYF in April 2016, but that he had no further contact between

then and January 2017.7 N.T., 1/25/2017, at 16. Ms. McCarthy explained

that Father was released from incarceration and resided at a halfway house

from April 2016 until May 31, 2016. Id. at 17. Father absconded from the

halfway house on May 31, 2016. Id. On September 1, 2016, Ms. McCarthy

was notified that Father had been taken back into custody. Id. Father was

then incarcerated until October 31, 2016, at which time he was paroled once

again to a halfway house.           Id. at 18-19.   Father left Ms. McCarthy a
____________________________________________


6 Our review of the record reveals that the court entered a series of orders
during Child’s dependency, directing that Father would not be permitted to
have contact with Child unless that contact was approved by Child’s
therapist. See, e.g., Permanency Review Order, 6/27/2016, at 9 (“The
father shall be permitted contact with [Child] only as may be deemed
therapeutically appropriate by [Child’s] therapist.”).
7 A permanency review order, entered June 27, 2016, provides the following

description of Father’s contact with CYF:

       [T]he father contacted the Agency on 3/9/16 and reported that
       he had been released from SCI-Forest and wanted to visit his
       son. He also called on 3/31/16 for an update about his son. On
       4/4/16, he came to the Agency office with his power-of-attorney
       and reported that he was receiving drug and alcohol treatment
       . . . . The father has not maintained any further contact with the
       Agency, nor his son, nor any of the service providers.

Permanency Review Order, 6/27/2016, at 2.



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voicemail and/or e-mail in January 2017, indicating that he no longer was

residing at the halfway house. Id. at 5, 19.

      Thus, the record confirms that Father refused or failed to perform

parental duties for the six months immediately preceding the filing of CYF’s

termination petition on December 8, 2016.        The record establishes that

Father has had no direct contact with Child since approximately 2014. While

Father made an effort to contact Child indirectly by sending a letter to

Child’s foster home, and by having his sister try to contact Child on his

behalf, these efforts were minimal.     Further, it does not appear from the

record that Father made any effort to contact Child at all after Child left

Foster Mother’s home in July 2016.

      While it is unlikely that Father would have been allowed to speak with

Child if he had tried to contact him more frequently, due to the prohibition

put in place by Child’s therapist, this does not excuse Father’s failure to

perform parental duties.     This Court has stressed that a parent must

exercise reasonable firmness in resisting the obstacles which limit his or her

ability to maintain a parent/child relationship. B.,N.M., 856 A.2d at 855. In

this case, it is clear that Father made no effort to resist these obstacles.

Most critically, Father failed to maintain contact with CYF. Father contacted

CYF in April 2016, but then absconded from a halfway house and failed to

contact CYF again until January 2017.




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     Accordingly, we conclude that the orphans’ court did not abuse its

discretion by terminating involuntarily Father’s parental rights to Child

pursuant to Section 2511(a)(1). Therefore, we affirm the court’s February

7, 2017 decree.

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2018




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