J-A19015-15


                                  2015 PA Super 207

IN RE: A.R., A MINOR                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
APPEAL OF: M.R., BIRTH FATHER
                                                      No. 2048 WDA 2014


               Appeal from the Order Entered November 17, 2014
               In the Court of Common Pleas of Allegheny County
                    Orphans' Court at No(s): TPR 83 OF 2014


IN RE: B.R., A MINOR                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
APPEAL OF: M.R., BIRTH FATHER
                                                      No. 2049 WDA 2014


               Appeal from the Order Entered November 17, 2014
               In the Court of Common Pleas of Allegheny County
                    Orphans' Court at No(s): TPR 82 OF 2014


BEFORE: BENDER, P.J.E., JENKINS, J., AND MUSMANNO, J.

OPINION BY BENDER, P.J.E.:                      FILED SEPTEMBER 29, 2015

       M.L.R. (“Father”) appeals from the orders involuntarily terminating his

parental rights to B.R. (born in July of 2007), and A.R. (born in March of

2010) (collectively “the Children”), pursuant to 23 Pa.C.S. §§ 2511(a)(2),

(a)(5), (a)(8), and § 2511(b).1 We affirm.2


____________________________________________


1
  The parental rights of S.K., the Children’s mother (“Mother”), were also
involuntarily terminated. Mother filed a separate appeal which is docketed
at Nos. 2006 WDA 2014 and 2007 WDA 2014.
2
  By order dated January 5, 2015, this Court consolidated these appeals sua
sponte.
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      The family first became known to the Allegheny County Office of

Children, Youth and Families (“CYF”) in October 2011 “following allegations

that the children were alone outside.      There were also concerns that the

family was being evicted and that the parents were using drugs.” Orphans’

Court Opinion (O.C.O.), 1/26/15, at 3 (citations to the record omitted). In

early April 2012, CYF sought and obtained an Emergency Custody

Authorization (“ECA”), after learning of Mother’s attempted suicide. Id.

      The children were removed from their Mother’s care; Father had
      left the home months prior. Mother was in the I.C.U. after
      attempting to end her life, and Father could not be a caregiver
      as he did not have housing, was [a] perpetrator of domestic
      violence, as well as a Suboxone addict. The children were
      temporarily placed in an Auberle foster home while awaiting a
      shelter hearing, as their grandparents had criminal histories and
      did not pass CYF’s emergency clearances. But at the shelter
      hearing, it was determined that B.R. could be placed with his
      Paternal Grandmother … and that A.R. could be placed with
      Maternal Step-Grandmother [].         There the children have
      remained. The children were adjudicated dependent on April 30,
      2012. The petition to involuntarily terminate the parents’ rights
      was filed on May 13, 2014.

Id. at 3-4 (citations to the record omitted).

      The record further indicates that an initial hearing regarding the

termination petition was held on June 2, 2014, in conjunction with a

permanency review in the dependency matter.        Father failed to appear at

the initial termination hearing; however, Mother appeared and announced

her intention to contest the petition. Accordingly, a contested hearing was

scheduled on the termination matter for November 12, 2014.




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      Father appeared at the termination hearing on November 12, 2014,

unrepresented, and requested a continuance to allow him time to obtain

counsel.      The trial court determined that Father had proper notice of the

hearing and sufficient time to obtain counsel prior to the hearing. Thus, the

court denied Father’s request for a continuance, and Father proceeded with

the hearing pro se.      After reviewing the evidence and hearing testimony

from Father, Mother, a CYF caseworker, a psychologist and the Children’s

Paternal Grandmother, the orphans’ court entered its orders terminating

Father’s parental rights to the Children.

      Father timely filed notices of appeal and concise statements of errors

complained of on appeal in compliance with Pa.R.A.P. 1925(a)(2)(i) and (b).

He now raises the following sole issue for our review:     “Whether the Trial

Court erred and/or abused its discretion in not granting the request of birth

father to be represented by counsel in the hearing to involuntarily terminate

Father’s parental rights as it pertains to his children A.R. and B.R.” Father’s

Brief at 1.

      Our standard of review regarding orders terminating parental rights is

as follows:

      When reviewing an appeal from a decree terminating parental
      rights, we are limited to determining whether the decision of the
      trial court is supported by competent evidence. Absent an abuse
      of discretion, an error of law, or insufficient evidentiary support
      for the trial court’s decision, the decree must stand. Where a
      trial court has granted a petition to involuntarily terminate
      parental rights, this Court must accord the hearing judge’s
      decision the same deference that we would give to a jury
      verdict. We must employ a broad, comprehensive review of the

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       record in order to determine whether the trial court’s decision is
       supported by competent evidence.

In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). The trial court is free to

believe all, part, or none of the evidence presented and is likewise free to

make all credibility determinations and resolve conflicts in the evidence. In

re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004).          If competent evidence

supports the trial court’s findings, we will affirm even if the record could also

support the opposite result. In re Adoption of T.B.B., 835 A.2d 387, 394

(Pa. Super. 2003).

       Father asserts that the trial court committed an abuse of discretion by

failing to advise him of his right to counsel and by proceeding with the

termination hearing, despite his request for a continuance to allow time to

obtain counsel. Father’s Brief at 5.

       We note that contrary to Father’s allegations, the record clearly

reflects that CYF served Father with a “Notice of Hearing on Petition to

Involuntarily Terminate Parental Rights,”3 which expressly provided, in

pertinent part:

       You are warned that even if you fail to appear at the scheduled
       hearing, the hearing will go on without you and your rights to
       your children may be ended by the court without your being
       present. You have a right to be represented at the hearing by a
       lawyer. You should take this paper to your lawyer at once. If
       you do not have a lawyer or cannot afford one, go to or

____________________________________________


3
 The notice is part of the certified record and is attached to the “Affidavits of
Attempted Service” filed with the court on May 30, 2014.



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       telephone the office set forth below to find out where you can
       get legal help.

                              Lawyer Referral Service
                       The Allegheny County Bar Association
                           Koppers Building, Suite 1100
                               436 Seventh Avenue
                               Pittsburgh, PA 15219
                           Telephone: (412) 261-5555

Notice of Hearing (attached to “Affidavits of Attempted Service”), 5/30/14.

CYF successfully completed service of the notice through publication4 in

accordance with Pa.O.C. Rule 15.6, which allows notice to be given by

publication when personal service cannot be completed.5         In addition to

advising Father of his right to counsel and how to obtain an attorney if he

could not afford one, the notice also contained information regarding the

date, time, and location of the hearing, as well as the purpose of the

hearing.

       Moreover, the trial court provides the following background and well-

reasoned analysis in support of its decision to deny Father’s request for a

continuance:

       At the beginning of the case Father was assigned counsel. But
       throughout the history of the case he made his intentions clear
       that he did not [want] to work with his counsel nor be a part of
____________________________________________


4
 CYF published the notice in the Pittsburgh Post-Gazette and the Pittsburgh
Legal Journal on May 9, May 16, and May 23 of 2014. “Proofs of Publication”
were filed with the court on June 2, 2014.
5
  An “Affidavit of Diligent Search” was filed with the court on May 30, 2014,
along with “Affidavits of Attempted Service,” indicating CYF’s diligent efforts
to locate Father and its failed attempt to obtain personal service on Father.



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     the Court proceedings. His decision not to communicate with
     counsel led to counsel’s motion to withdraw. Not only did he fail
     to communicate with CYF, he clearly avoided it. Testimony
     revealed that Father skipped dependency review hearings,
     because there was a warrant out for his arrest. It was clear that
     he only showed up to the [Termination of Parental Rights (TPR)]
     trial because, in the months prior to the trial, he was finally
     arrested and the outstanding criminal matter resolved. In other
     words, once he realized he was not going to go to jail if he
     stepped foot in the courthouse, he was agreeable to taking part
     in the case. Before seeking a withdrawal, Father’s counsel had
     tried to contact her client since late 2013 – over one year prior
     to the TPR. Because the children were placed with his mother
     and another familial connection, Father was aware that the
     children were out of his and Mother’s care during the entirety of
     the case.    Because of Father’s knowledge of the children’s
     placements with relatives, and because he avoided contact with
     CYF, the agency became to rely on his mother – Paternal
     Grandmother and foster mother to B.R. – to give Father actual
     notice of hearings, including the TPR trial. … Father admitted
     the same and that he actually received CYF’s paperwork
     regarding the hearing. He did not apply for counsel, nor did he
     seek to ensure that [the] attorney who had been trying to reach
     him for months was still on his case.

     Despite the regularity [of] TPR trials before it, this Court does
     not take lightly the awesome power it wields, nor does it fail to
     recognize the parents’ constitutional rights at stake. Still, the
     permanency of the children is paramount, and given that Father
     had proper notice and time to obtain counsel prior to the trial,
     this court determined no continuance was warranted.

O.C.O. at 4-5. Based on our review of the record, we conclude that Father

had proper notice of the hearing and his right to counsel, and that he was

provided with clear instructions regarding how to obtain a lawyer if he could

not afford one. We discern no abuse of discretion by the orphans’ court.

     Father also attempts to argue that the court previously deemed him

indigent and, therefore, it should have appointed him counsel for the

termination proceeding in accordance with 23 Pa.C.S. § 2313(a.1). Father’s

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Brief at 4-5. However, as we stated in In re Adoption of J.N.F., 887 A.2d

775 (Pa. Super. 2005), an indigent parent must petition the trial court for

counsel in a termination proceeding.         Id. at 780.    The appointment of

counsel is not an automatic right.

            The appointment of counsel for indigent parents in
      termination proceedings is controlled by 23 Pa.C.S.A §
      2313(a.1), which states, in pertinent part, the following:

            (a.1) PARENT.—The court shall appoint counsel for a
         parent whose rights are subject to termination in an
         involuntary termination proceeding if, upon petition of
         the parent, the court determines that the parent is unable
         to pay for counsel or if payment would result in substantial
         financial hardship.

Id. (emphasis added by J.N.F.).

      In J.N.F., an incarcerated father was served with notice of a

termination hearing containing language informing him that he had the right

to counsel and instructing him to notify the Family/Orphans’ Court

Administrator if he could not afford counsel and wished to obtain a court-

appointed attorney.   Id.     The father in J.N.F. told his caseworker that he

wished to contest the termination petition, but failed to request that the trial

court appoint counsel. The father failed to appear at the termination hearing

and   the   court   entered    an    order   terminating   his   parental   rights.

Subsequently, the father in J.N.F. filed a notice of appeal asserting that the

trial court committed an abuse of discretion by failing to appoint him

counsel, as the court was aware that he was indigent and intended to

contest the termination petition. Id. at 779, 780. However, because of the


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father’s failure to petition the trial court for a court-appointed attorney, we

determined that the trial court did not abuse its discretion by not appointing

counsel for the father. Id. at 780.

      Similar to J.N.F., in the case before us, the notice clearly instructed

Father to contact the Lawyer Referral Service if he did not have an attorney

or could not afford one. However, Father failed to take any action to obtain

counsel prior to the termination hearing.

      Based upon our review of the record, we conclude that the orphans’

court’s findings and conclusions are supported by the evidence presented

and discern no abuse of discretion. Accordingly, we affirm the termination of

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

(a)(8), and § 2511(b).

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2015




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