J-A27028-18

                                   2019 PA Super 40


    IN RE: ADOPTION OF: C.J.A., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
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    APPEAL OF: B.A., MOTHER AND P.F.           :   No. 1731 EDA 2018

                   Appeal from the Order Entered May 10, 2018
                 In the Court of Common Pleas of Monroe County
                       Orphans’ Court at No: 86 OCA 2017

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY STABILE, J.:                              FILED FEBRUARY 14, 2019

       B.A. (“Mother”) and P.F. (“Fiancé”) (collectively, “Petitioners”)1, 2 appeal

from the order entered May 10, 2018, which denied their petition to terminate

the parental rights of G.L.K., III (“Father”), involuntarily with respect to his

son, C.J.A. (“Child”), born in March 2012. After careful review, we affirm.

       The record reveals that Mother and Father dated for about three months

in 2011, prior to Child’s birth. N.T., 4/25/18, at 12. At the time, both Mother

and Father lived in Luzerne County. Id.; N.T., 3/1/18, at 5. After Child was

born, Father questioned whether he was Child’s father and sought a paternity

____________________________________________


1 While Mother appears to indicate in her brief that she is the sole appellant in
this case, her notice of appeal states that both she and Fiancé are appealing
together.

2During these proceedings, Mother indicated that she and Fiancé would be
married in October 2018. N.T., 3/1/18, at 27. The record does not indicate
whether the marriage actually took place.
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test. N.T., 3/1/18, at 6. The test confirmed Father’s paternity of Child and

Mother obtained a child support order.3 Id.

       After receiving the results of the paternity test, Father began exercising

partial physical custody of Child. Id. at 11. No custody order existed, but the

parties reached an informal agreement providing Father with custody every

other weekend. Id. at 11, 14. This began when Child was several months

old and lasted about a year until Father separated from his new girlfriend.

N.T., 4/25/18, at 16-17. The separation left Father homeless temporarily and

his periods of custody ended because he had nowhere to go with Child. Id.

About a week later, Father moved into his sister’s home, which was directly

across the street from Mother’s home. Id. at 17. Father started visiting Child

at Mother’s home “[a]bout three or four times a week, . . . for about two

hours.” Id. at 18. This continued until October 2014, when Child was two

and a half years old. Id. at 20; N.T., 3/1/18, at 8. At that time, Mother left

her home near Father’s sister and moved with Fiancé to Monroe County. N.T.,

3/1/18, at 8. Father confronted Mother as she was preparing to leave and

she informed him that he “would not see [Child] anymore.” N.T., 4/25/18, at

20-21.

       Mother did not tell Father where she and Child would be living and he

struggled to locate them after they left. Id. at 21. Father retained Mother’s


____________________________________________


3Father has remained current on his child support obligation to the present
day. N.T., 3/1/18, at 11.


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phone number on his prepaid cellphone but “smashed” the phone accidently

and was unable to retrieve the number. Id. at 22. He further discovered that

Mother blocked him on Facebook. Id. at 24. Father occasionally drove by the

home of Mother’s parents to see if her car was there, but to no avail. Id. at

23. He also spoke to two of Mother’s friends, but they informed him that they

too did not know where Mother lived. Id. at 23-24.

      In 2016, one of Mother’s friends informed Father that Mother and Child

may be residing in Monroe County. Id. at 25. Father conducted an internet

search but did not learn anything new about Mother’s whereabouts. Id. at

26. Later that year, in September 2016, Father’s current girlfriend gave birth

to his daughter. Id. at 27. This event inspired Father to renew his search for

Mother and Child. Id. at 27, 45. In June 2017, Father decided to reach out

to Mother’s sister on Facebook. Id. at 27. He requested that Mother’s sister

pass along a message asking Mother to contact him so that he could spend

time with Child without court intervention. Id. at 28. Mother initially failed

to respond but relented after about a month because Father continued to send

messages to her sister. Id. at 40, 58. Mother passed a message back to

Father stating that she would not be contacting him. Id. at 57.

      Undeterred, Father spoke to his lawyer about what he could do to locate

Mother and Child. N.T., 4/25/18, at 29. Father’s lawyer advised him to hire

a private investigator and file a custody complaint. Id. at 30. Father utilized

a private investigation website, which revealed Mother’s phone number but

not her new address. Id. Father also filed a complaint for custody in Luzerne

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County. Id. Father tried to serve Mother by mailing the relevant documents

to her parents’ home, but Mother’s parents returned the documents to Father.

Id. at 31-33.

        After consulting a police officer, Father also began searching publically

available criminal docket sheets. Id. at 29, 34. Father’s search revealed that

Mother had an active criminal case.4 Id. at 35. In approximately September

2017, Father and his lawyer contacted the office of the magistrate handling

the case and obtained a copy of the criminal complaint, which contained a new

address for Mother. Id. at 35-37. Later that month, Father hired Constable

Charles West to serve Mother personally. Id. at 4-5. Constable West could

not locate Mother at the addresses Father provided,5 but was able to contact

Fiancé by calling the phone number that Father obtained using the private

investigation website. Id. at 5-6, 10, 65. According to Constable West, Fiancé

“pretty much told me that they’re not going to tell me where they are at

because [Father] will never see his daughter or his children [sic] again. And

told me to go F myself, and have a nice day.” Id. at 6.

        In November 2017, Father obtained an order permitting him to serve

Mother by publication. Id. at 37-39. The Luzerne County trial court conducted

a custody conciliation in January 2018, at which Mother failed to appear, and

____________________________________________


4   Mother testified that the charges “were all dropped.” N.T., 3/1/18, at 70.

5Mother had moved to her current address earlier in the year. N.T., 3/1/18,
at 5.



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entered an interim custody order. Id. at 41; Petitioners’ Exhibit 4. Shortly

thereafter, Father received notice that Petitioners filed a petition to terminate

his parental rights involuntary in Monroe County on December 28, 2017.6 Id.

at 41.     Petitioners also filed a custody complaint in Monroe County and

preliminary objections in Luzerne County challenging the proceedings based

on improper venue. N.T., 3/1/18, at 19-22. The Luzerne County trial court

vacated its interim order and directed that all future custody proceedings

occur in Monroe County. See Petitioners’ Exhibit 5.

        On March 1, 2018, and April 25, 2018, the Monroe County orphans’ court

conducted a hearing on the involuntarily termination petition. The court heard

the testimony of Mother, Fiancé, Constable West, and Father. Following the

hearing, by order entered May 10, 2018, the court denied the petition. In its

opinion accompanying the order, the court found that the Adoption Act would

not permit Fiancé to adopt Child because he and Mother were not yet married.

Orphans’ Court Opinion, 5/10/18, at 5-8. The court further observed that

Petitioners filed their termination petition to thwart Father’s custody case,

which was contrary to the purposes of the Act. Id. at 8-9. In addition, the

court found that Petitioners failed to prove grounds for termination of Father’s

parental rights pursuant to Section 2511(a)(1) of the Act. Id. at 10-16. The

court reasoned that Father attempted to reestablish a relationship with Child

in the six months immediately preceding the filing of the termination petition

____________________________________________


6   Fiancé also filed a petition for adoption and a report of intention to adopt.


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but that Mother created barriers to prevent his success. Id. at 12-16. The

court described Father’s testimony as “credible and convincing” but rejected

Mother’s testimony, observing that her “demeanor in Court was less than

convincing and she appeared angry that Father wanted to be a part of the

child’s life.” Id. at 14-16. Petitioners timely filed a notice of appeal on June

11, 2018,7 along with a concise statement of errors complained of on appeal.

       Petitioners now raise the following issues for our review.

       1. Did the [orphans’ c]ourt err by finding, based on the marital
       status of the parties, that [Fiancé] could not petition for adoption
       under the act despite th[e] fact that the parties have been
       together for years, intend to get married and have set a date,
       have [a] child in common who is a sibling to [Child] and [Fiancé]
       has raised the child as his own?

       2. Did the [orphans’ c]ourt err in finding that Father’s minimal
       efforts by attempting to locate and file for a custody modification
       after a greater than three-year absence, w[ere] enough to
       overcome the evidence of clear abandonment and intent to
       relinquish his parental rights and fail[ure] to perform any essential
       duties?

____________________________________________


7 Generally, a party must file his or her notice of appeal within thirty days after
entry of the order. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by
this rule, the notice of appeal . . . shall be filed within 30 days after the entry
of the order from which the appeal is taken.”). Thirty days after May 10,
2018, was Saturday, June 9, 2018. Thus, Petitioners timely filed their notice
of appeal on Monday, June 11, 2018. See 1 Pa.C.S.A. § 1908 (“Whenever
the last day of any such period shall fall on Saturday or Sunday, . . . such day
shall be omitted from the computation.”).




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      3. Did the [orphans’ c]ourt place too much weight upon the
      alleged efforts [M]other took to block contact and fail[] to account
      for the best interest of the child in view of [F]ather’s clear intent
      for several years to abandon his responsibilities by making no
      effort at all to establish [] contact with much less parent[] [] the
      minor child?

Petitioners’ Brief at 5 (suggested answers omitted).

      We consider these claims mindful of our well-settled standard of review.

      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).

      Before reaching the merits of this appeal, we discuss sua sponte Child’s

right to counsel. See In re Adoption of T.M.L.M., 184 A.3d 585, 588 (Pa.

Super. 2018) (addressing the child’s right to counsel sua sponte “as children

are unable to raise the issue on their own behalf due to their minority.”).

      The Adoption Act requires that children receive counsel in all contested

involuntarily termination proceedings.

      (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

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      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.A. § 2313(a).

      The term “counsel” in Section 2313(a) refers to an attorney directed by

the child who represents his or her legal interests. In re Adoption of L.B.M.,

161 A.3d 172, 180 (Pa. 2017). As our Supreme Court has explained, a child’s

legal interests are distinct from his or her best interests. Id. at 174. A child’s

legal interests are synonymous with his or her preferred outcome, while the

orphans’ court must determine a child’s best interests. Id. In a recent case,

the Court explained that a single attorney may represent both a child’s best

interests as his or her guardian ad litem (“GAL”) and that child’s legal interests

as counsel pursuant to Section 2313(a), but only if no conflict exists between

the two sets of interests. In re T.S., 192 A.3d 1080, 1088 (Pa. 2018).

      Concerning the responsibilities of counsel when representing a child, this

Court has stated that effective representation requires, “at a bare minimum,

attempting to ascertain the client’s position and advocating in a manner

designed to effectuate that position.” T.M.L.M., 184 A.3d at 590. We also

find instructive Section 6311 of the Juvenile Act and Rule 1154 of our Rules of

Juvenile Court procedure, which govern the duties of a GAL representing a

child’s legal and best interests in a dependency proceeding. See T.S., 192

A.3d at 1089-90 (finding Section 6311(b)(9) instructive and applying it to

interpret Section 2313(a)). The relevant provisions require that a child’s GAL



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determine his or her wishes “to the extent that they can be ascertained . . . .

When appropriate because of the age or mental and emotional condition of

the child[.]” 42 Pa.C.S.A. § 6311(b)(9); Pa.R.J.C.P. 1154(A)(9).

        In the instant matter, Hillary Madden, Esquire, represented Child during

the termination proceedings. While the transcripts of the hearing list Attorney

Madden as Child’s GAL, the orphans’ court appointed her solely as Child’s legal

counsel. See Order, 1/11/18. During the hearing, Attorney Madden did not

present any evidence of her own, but did cross-examine the witnesses. She

also made two statements regarding her position as Child’s counsel. Both

statements related to the fact that Child did not remember Father, whom he

had not seen since at least October 2014, and believed Fiancé to be his

biological parent. On March 1, 2018, concerning the question of whether the

court should conduct an interview of Child, Attorney Madden stated as follows.

              I met with him. He is five.[8] He doesn’t really have a very
        large attention span because he is five years old, and I wouldn’t
        want him to have to sit outside for an entire hearing.

              So my only thought was if Your Honor wanted to talk to him
        just about the adoption portion. Obviously, he wouldn’t have
        anything to say about the TPR because everyone testified he’s not
        even aware [Father] is his father. So, I would leave it up to the
        Court’s discretion if you want to talk to him about the adoption.

N.T., 3/1/18, at 104.




____________________________________________


8   Child turned six later that month.

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        In addition, at the conclusion of the hearing, Attorney Madden stated

the following.

              Your Honor, as we discussed in the last hearing, I don’t have
        any testimony. [Child] is not here because of his age, and as Your
        Honor is well aware because of the nature of the fact that he does
        not know that he is the father -- his biological father.

N.T., 4/25/18, at 67-68.

        Finally, Attorney Madden filed a brief in this Court, addressing at length

her representation of Child. Attorney Madden explains as follows, in relevant

part.


        . . . . [D]ue to the age and maturity of [Child] along with the   fact
        that he did not know [Father] was his biological father,           the
        undersigned, as legal counsel, was unable to explain               the
        termination of parental rights proceeding and/or discuss           the
        potential adoption by [Fiancé].

                                        ***

               As a result, the undersigned was unable to set forth a
        position on the record since the undersigned was only appointed
        as legal counsel and not as a [GAL] and it could not be sufficiently
        ascertained as to what [Child’s] position would be regarding the
        termination of parental rights. However, the undersigned was
        able to view the relationship between [Child] and [Fiancé] and it
        was clear that the two had a strong bond particularly because
        [Child] identified [Fiancé] as his biological father and had never
        been told otherwise.

Child’s Brief at 1-2.

        Under the unique circumstances presented here, we find that Attorney

Madden’s representation of Child complied with the minimum requirements of

Section 2313(a). While Child was just over six years old at the conclusion of



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the termination hearing and may have been articulate enough to express his

legal interests, he did not and could not possess a preferred outcome in this

case. Child was still quite young and did not even realize that Father existed.

Moreover, it may have been confusing and traumatic for Attorney Madden to

tell Child that Father existed and it was a reasonable judgment on her part

not to do so. Thus, Attorney Madden discharged her duty as Child’s counsel

to the best of her ability, based on his age, mental condition, and emotional

condition, and we see no basis upon which to remand this matter for further

proceedings.

       Because we conclude that Child received adequate representation of his

legal interests in accordance with L.B.M. and its progeny, we may now turn

to the merits of this appeal. We focus our analysis on Petitioners’ second and

third claims, in which they challenge the finding of the orphans’ court that

they failed to present clear and convincing evidence to terminate Father’s

parental rights.9

       Section 2511 of the Adoption Act governs involuntary termination of

parental rights. See 23 Pa.C.S.A. § 2511. It 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

____________________________________________


9In light of our conclusion with regard to Petitioners’ second and third claims,
we need not consider their first claim, in which they argue that the orphans’
court erred by finding that the Adoption Act would not permit Fiancé to adopt
Child.

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     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).

     Petitioners filed their petition pursuant to Sections 2511(a)(1) and (b)

which provide as follows.

     (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.

                                     ***

      (b) Other considerations.―The court in terminating the rights
      of a parent shall give primary consideration to the developmental,
      physical and emotional needs and welfare of the child. The rights
      of a parent shall not be terminated solely on the basis of
      environmental factors such as inadequate housing, furnishings,
      income, clothing and medical care if found to be beyond the
      control of the parent. With respect to any petition filed pursuant
      to subsection (a)(1), (6) or (8), the court shall not consider any
      efforts by the parent to remedy the conditions described therein
      which are first initiated subsequent to the giving of notice of the
      filing of the petition.

23 Pa.C.S.A. § 2511(a)(1), (b).




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      For a petitioner to meet the requirements of Section 2511(a)(1), he or

she “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). The orphans’ court must then consider the parent’s explanation

for his or her abandonment of the child, in addition to any post-abandonment

contact. Id. (quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92

(Pa. 1998)). A parent does not perform parental duties by displaying a merely

passive interest in the development of his or her 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. A parent must utilize
      all available resources to preserve the parental relationship, and
      must exercise reasonable firmness in resisting obstacles placed in
      the path of maintaining the parent-child relationship. Parental
      rights are not preserved by waiting for a more suitable or
      convenient time to perform one’s parental responsibilities while
      others provide the child with his or her physical and emotional
      needs.

Id. (citations omitted).

      Instantly, Petitioners maintain that the orphans’ court erred by denying

their petition to terminate Father’s parental rights based on his “very minimal



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recent effort” to reestablish contact with Child. Petitioners’ Brief at 16. They

emphasize that courts must consider the whole history of a given case and

not just the six months immediately preceding the filing of the petition. Id.

at 18-20 (citing In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999)). They

assert that Father’s abandonment of Child was so lengthy that his belated

attempts to perform parental duties during the relevant six months were not

sufficient to preserve his parental rights. Id. at 19-20. Petitioners further

contend that the court placed too much weight on the alleged obstacles Mother

created to prevent Father from performing parental duties. Id. at 20. They

suggest that creating obstacles may have been “the right thing to do” in order

to protect Child from the trauma of being reintroduced to Father after so many

years. Id. at 20-22.

      We discern no abuse of discretion by the orphans’ court. As explained

in our factual summary of this case above, Petitioners filed their involuntary

termination petition on December 28, 2017. Thus, the six-month period set

forth in Section 2511(a)(1) began to run on June 28, 2017. During that time,

the record is clear that Father did nearly everything within his power to

reestablish a relationship with Child and perform parental duties. Beginning

in June 2017, Father contacted Mother’s sister on Facebook in an attempt to

arrange visits with Child. He consulted his lawyer concerning ways to locate

Mother and Child. Father then used a private investigation website to search

for Mother and filed a custody complaint in Luzerne County. He spoke to a


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police officer, searched publically available criminal dockets, and discovered

that Mother had an active criminal case. Father and his lawyer contacted the

office of the magistrate handling the case in an effort to obtain Mother’s

address. He attempted to serve Mother personally by hiring Constable West

and then resorted to service by publication. Finally, Father attended a custody

conciliation and even obtained a custody order in Luzerne County. While it is

true that Father did not actually succeed in making contact with Child, he

strove to overcome the obstacles that Mother placed in his path. B.,N.M.,

856 A.2d at 855.

      Further, while Petitioners are correct that orphans’ courts must consider

the whole history of a given case and not just apply the relevant six-month

period mechanically, the fact remains that the six-month period is the most

critical part of the court’s analysis. D.J.S., 737 A.2d at 286. If we were to

accept Petitioners’ argument and reverse the order of the orphans’ court, we

would be ignoring the six-month period almost entirely. Because the Adoption

Act required the court to focus its attention on the six months immediately

preceding the filing of the petition, and because the record supports the court’s

decision that Father made substantial efforts to perform his parental duties

during that time, Petitioners are not entitled to relief. See In the Interest

of D.F., 165 A.3d 960, 966 (Pa. Super. 2017), appeal denied, 170 A.3d 991

(Pa. 2017) (“The Orphans’ Court is free to believe all, part, or none of the

evidence presented and is likewise free to make all credibility determinations


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and resolve conflicts in the evidence.”); In re R.J.T., 9 A.3d 1179, 1190 (Pa.

2010) (“Even if an appellate court would have made a different conclusion

based on the cold record, we are not in a position to reweigh the evidence and

the credibility determinations of the trial court.”).

      Based on the foregoing, we conclude that the orphans’ court did not

abuse its discretion or commit an error of law by denying the petition to

terminate Father’s parental rights involuntarily.       Therefore, we affirm the

court’s May 10, 2018 order.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/19




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