J-S42009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF: C.K., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: E.G., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 208 MDA 2018

              Appeal from the Decree Entered December 29, 2017
    In the Court of Common Pleas of Northumberland County Orphans' Court
                        at No(s): Adoptee # 9 of 2015


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

MEMORANDUM BY BOWES, J.:                            FILED SEPTEMBER 19, 2018

       E.G. (“Mother”) appeals from the orphans’ court decree entered

December 29, 2017, that granted the petition of the Northumberland County

Children and Youth Social Service Agency (“CYS”), and involuntarily

terminated her parental rights to her minor son, C.K.1 We vacate and remand

for further proceedings consistent with this memorandum.

       CYS became involved with C.K. shortly after his birth in October 2012.

At the hospital, Mother’s care for C.K. raised concerns. N.T., 7/6/16, at 6.

When hospital staff attempted to make recommendations regarding C.K.’s

care, Mother became violent, throwing items around her room and at staff.


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1  In separate decrees, the orphans’ court terminated the parental rights of
J.K., the legal father, and M.C., the biological father. Neither man appealed
the respective decrees or participated in this appeal.
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* Retired Senior Judge assigned to the Superior Court.
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Id. at 6-7. CYS subsequently offered Mother a parenting service, a referral

for early head start, and a recommendation for mental health and medication

management services. Id. at 7. Mother initially cooperated with CYS, but

subsequently became uncooperative, moving between Northumberland

County and Dauphin County to avoid CYS involvement. Id. at 8-9.

      CYS then received a referral alleging Mother was drinking, using

marijuana, and “popping pills.”      Id. at 10-11.      Sarah Austin, a CYS

caseworker, went to Mother’s home to investigate, and Mother slammed the

door in her face. Id. at 11. While Ms. Austin waited outside, the police arrived

to investigate a domestic dispute between Mother, Mother’s brother, and her

brother’s girlfriend. Id. After the police arrived, Ms. Austin went into the

home and attempted to drug test Mother, who would not take the drug test,

but informed Ms. Austin she would test positive for morphine. Id.

      Ms. Austin observed the home was extremely cluttered, with safety

hazards all over the floor. Id. Ms. Austin offered Mother a safety plan if she

could identify someone who would be appropriate to supervise Mother’s

contact with C.K.   Id. at 12.   Mother refused to identify anyone because

Mother did not want C.K. removed from her custody.         Id. at 12-13.   CYS

obtained an order for temporary custody. Id. at 13. Mother became violent,

“punching out” the living room window and making suicidal threats.          Id.

Following the incident, Sunbury Community Hospital admitted Mother for

twenty days as a psychiatric patient. Id. at 14. Subsequently, the juvenile


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court adjudicated C.K. dependent on December 18, 2013. N.T., 11/12/15,

Exhibit 1.

       On March 17, 2015, CYS filed a petition for involuntary termination of

parental rights, seeking to terminate Mother’s parental rights to C.K.      The

orphans’ court conducted hearings on the petition on November 12, 2015, July

6, 2016, August 31, 2016, and July 19, 2017.2 Rachel Wiest-Benner, Esquire,

served as C.K.’s guardian ad litem, and appeared at each hearing. In response

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2   Plainly, the two–and-one-half-year timeline presented in this case is
unacceptable insofar as it flouts our Supreme Court’s mandate that courts
resolve children’s fast track cases expeditiously. See In re T.S.M., 71 A.3d
251, 256 n.12 (Pa. 2013) (“An eight month delay between the filing of a
termination petition and a hearing thereon, without some explanation is
inconsistent with the best practices for dependent children in need of
permanency.”).

   While the most recent delays were due to the necessity of a court-ordered
competency evaluation and Mother’s decision to abscond from the termination
proceeding, those interruptions do not explain the remaining delays that
plagued this case throughout. Indeed, our review of the certified record
reveals that the orphans’ court granted the parties five separate requests for
continuances that delayed the proceedings by 306 days. The case was
delayed an additional ninety days when the trial court administrator
reassigned it, without explanation, to a different orphans’ court judge, who
subsequently recused and returned the case to the original judge. Hence,
whether through administrative inefficiencies or the orphans’ court’s liberal
grant of continuances, resolution was postponed 396 days.

   Furthermore, in addition to the foregoing interruptions, the certified record
also discloses an unexplained gap of five and one-half months between the
penultimate hearing on August 31, 2016, and the ensuing order dated
February 14, 2017 that scheduled the final hearing for March 26, 2017. Thus,
even ignoring all of the delay attributable to the various continuances,
Mother’s disappearance, and the competency evaluation, the case was
needlessly delayed 168 days without explanation. This scenario is intolerable.



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to our High Court’s then-new holding in In re Adoption of L.B.M., 161 A.3d

172, 183 (Pa. 2017), on April 10, 2017, the orphans’ court appointed Brian

Ulmer, Esquire, as legal counsel for C.K. Attorney Ulmer only appeared at the

July 19, 2017 hearing. On December 29, 2017, the orphans’ court entered a

decree terminating Mother’s parental rights to C.K.3     Mother timely filed a

notice of appeal, along with a concise statement of errors complained of on

appeal.

       Prior to addressing the merits of Mother’s appeal, we must first address

sua sponte the representation provided by C.K.’s legal counsel. Pursuant to

23 Pa.C.S. § 2313(a), a child who is the subject of a contested involuntary

termination proceeding has a statutory right to counsel who discerns and

advocates for child’s legal interests, which our Supreme Court has defined as

a child’s preferred outcome. In re T.S., __ A.3d __, 2018 WL 4001825 at *

1 (Pa. 2018) (citing In re Adoption of L.B.M., supra). Because the right to

counsel belongs to the child who is unable to address a deprivation of his or

her right to counsel on his or her own behalf, we must address this issue sua

sponte. See id. at *5 (holding that the child’s statutory right to counsel is

non-waivable); In re K.J.H., 180 A.3d 411 (Pa. Super. 2018) (holding that




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3 The orphans’ court considered the dependency record in its determination.
Only limited portions of the dependency record are contained in the certified
record.

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this Court must determine sua sponte whether 23 Pa.C.S. § 2313(a) was

satisfied).

      Since L.B.M., this Court has clarified the requirements counsel must

meet in order to provide adequate representation in termination matters. See

In re Adoption of T.M.L.M., 184 A.3d 585, 587-91 (Pa.Super. 2018).

Counsel’s duty to represent a child does not stop at the conclusion of the

termination of parental rights hearing. Id. at 590; see also In re M.T., 607

A.2d 271, 276 (Pa.Super. 1992) (observing that child’s counsel abdicated his

legal responsibilities to his client because counsel, inter alia, failed to file a

brief, indicate that he joined another party’s brief, or otherwise notify this

Court of his client’s position).

      Instantly, the orphans’ court did not appoint Attorney Ulmer until April

of 2017. Accordingly, C.K. had the benefit of § 2313(a) counsel for only one

of the four proceedings in the contested termination case, the July 19, 2017

hearing. However, Mother did not appear for the July 19, 2017 hearing, and

the testimony primarily related to determining whether Mother had notice of

the hearing, as well as testimony regarding a competency evaluation

performed on Mother. Attorney Ulmer engaged in limited cross-examination

of some of the witnesses. He did not indicate C.K.’s legal preferences at the

hearing, and there is nothing in the record to demonstrate that he interviewed

C.K., who was then four and one-half years old, to ascertain his preferred




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outcome.4 Compounding these issues, Attorney Ulmer neglected to enter his

appearance with this Court, file a brief, or join the brief of another party.5

Further, nothing in the record clearly indicates C.K.’s preference. There was

testimony that C.K. reacted negatively to Mother’s presence on occasions, but

a bonding evaluation undertaken in March of 2015 revealed that C.K.

interacted with Mother without fear or apprehension and demonstrated

affection for her. N.T., 11/12/15, at 147, 195; N.T., 7/6/16, at 94.

       Accordingly, in light of the fact the orphans’ court failed to ensure that

C.K. received the legal representation to which he was entitled pursuant to §

2313(a), and mindful that counsel’s obligation to C.K. extended to this appeal,



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4 At the conclusion of the July 19, 2017 hearing, the orphans’ court held the
record open to determine why Mother did not appear. By order dated
September 27, 2017, the orphans’ court closed the record, finding Mother’s
proffered excuse, that she was physically unable to travel to the courthouse
as a result of being “frozen” by a “severe anxiety attack,” was insufficient to
continue the hearing.

5 While there is no indication in the record that Attorney Ulmer withdrew his
appearance following the July 19, 2017 hearing, there is also no evidence that
he was served with the decree terminating Mother’s parental rights, Mother’s
notice of appeal, concise statement of errors complained of on appeal, or any
subsequent document involving Mother’s appeal. To complicate matters even
further, the certified record contains a June 29, 2017 order that was entered
by a different orphans’ court judge after that judge had recused himself from
the proceeding. The order purported to appoint Ann Targonski, Esquire as
C.K.’s legal counsel; however, it did not mention Attorney Ulmer or recognize
the fact that the child’s legal interest were already represented, as
subsequently confirmed by Attorney Ulmer’s participation in the July 2017
hearing. In addition, the June order was not served on any party, and
Attorney Targonski did not enter her appearance, attend any hearings, or
represent the child in any capacity.

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we vacate the decree in this matter, and remand for further proceedings. See

In re Adoption of T.M.L.M., supra at 587-91 (vacating and remanding for

further proceedings where the attorney admitted she did not interview the

nearly six-year-old child to ascertain the child’s preferences); see also In re

Adoption of D.M.C., __ A.3d __, 2018 WL 3341686 (Pa.Super. July 9, 2018)

(vacating and remanding where the record was unclear in what capacity the

attorney had been appointed to represent the children and whether the

attorney had ascertained children’s legal interests prior to the hearing); see

also In re Adoption of M.D.Q., __ A.3d __, 2018 WL 3322744 (Pa.Super.

filed July 6, 2018) (vacating and remanding where the record does not indicate

that counsel attempted to ascertain the children’s preferences and the record

does not reflect the children’s legal interests).

      On remand, we direct the orphans’ court to determine Attorney Ulmer’s

status and, if necessary, appoint substitute legal counsel for C.K. forthwith.

Counsel must attempt to ascertain C.K.’s preferred outcome as to Mother by

directly interviewing C.K., following his direction to the extent possible, and

advocating in a manner that comports with C.K.’s legal interests. Once C.K.’s

preferred outcome is identified, counsel shall notify the orphans’ court whether

termination of Mother’s parental rights is consistent with C.K.’s legal interests.

If C.K.’s preferred outcome is consistent with the result of the prior

termination proceedings, or if a preference cannot be ascertained, the

orphans’ court shall re-enter its December 29, 2017 decree. If the preferred


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outcome is in conflict with the prior proceeding, the orphans’ court shall

conduct a new termination hearing as to Mother to provide C.K.’s legal counsel

an opportunity to advocate on behalf of C.K.’s legal interests. See T.M.L.M.,

supra at 591 (ordering that the trial court shall conduct a new hearing only if

it serves the “substantive purpose” of providing the child with the opportunity

to advance his legal interests through new counsel).

      Decree vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/19/2018




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