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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: S.M.S.V., A                     IN THE SUPERIOR COURT OF
MINOR                                                     PENNSYLVANIA

APPEAL OF: M.A.S., FATHER

                                                          No. 107 MDA 2016


                   Appeal from the Decree December 9, 2015
         in the Court of Common Pleas of Berks County Orphans' Court
                                at No(s): 84343

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                              FILED JULY 05, 2016

        M.A.S. (“Father”) appeals from the decree entered on December 9,

2015,     granting   the   petition   filed   by   J.O.   and   M.N.R.   (“Maternal

Grandparents”), seeking to involuntarily terminate Father’s parental rights to

his minor child, S.M.S.V., a female born in March of 2008 (“Child”), pursuant

to the Adoption Act, 23 Pa.C.S. § 2511(a)(1) and (b).1             We vacate and

remand.

        On July 28, 2015, Maternal Grandparents filed the petition for

involuntary termination.     After the trial court corresponded with Maternal


*
    Former Justice specially assigned to the Superior Court.
1
  The trial court found that Mother was murdered in 2007, as J.O. testified
that she was murdered in December of 2007; however, the date of the
murder is unclear from the record, as the death certificate attached to the
amended petition provides that Mother’s body was found in December of
2012. See Trial Ct. Op., 2/23/16, at 2; N.T., 12/9/15, at 5; Death
Certificate attached to Amended Termination Petition.
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Grandparents’ counsel requesting clarification, Maternal Grandparents filed

an amended petition on October 13, 2015.2

      The trial court set forth the relevant factual background and

procedural history of this case in its opinion, as follows.

            The petition was filed on the grounds that Father had
         not seen or contacted Child in over two years, had not
         contributed to support of Child, had by his conduct for a
         period in excess of six months clearly indicated a settled
         purpose of relinquishing parental claim to Child, and had
         refused and failed to perform parental duties. Father was
         present at the hearing scheduled for December 9, 2015.
         Upon consideration of the testimony offered at the
         hearing, the [c]ourt terminated Father’s parental rights [in
         the decree entered on December 9, 2015.]

Trial Ct. Op., 2/23/16, at 1.

      On January 8, 2016, Father timely filed a notice of appeal, along with

a concise statement, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).            On

February 23, 2016, the trial court appointed Susan N. Denaro, Esq., as

counsel for Child. The trial court order directed Attorney Denaro to review

the record in this matter, interview Child, and otherwise conduct an

investigation into Child’s best interests relative to whether the termination of

Father’s parental rights was appropriate and whether Child should be

adopted by Maternal Grandparents.       Further, the trial court order directed

Attorney Denaro to prepare a report containing her findings, conclusions,


2
 In its opinion, the trial court referred only to the amended petition. Trial
Ct. Op., 2/23/16, at 1 n.*.




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and recommendations, file it with the court, and serve it on the parties

within thirty days.3 Attorney Derano filed her report on March 24, 2016.

      In his brief on appeal, Father raises one issue: “[w]hether numerous

procedural defects and violations of due process in the lower court below

necessitate remand of this matter?”        In his concise statement, Father

included eight allegations of error. In his summary of argument portion of

his brief, Father identifies two matters for our review:

         First, despite the fact that Father contested the
         termination of his parental rights, the lower court did not
         appoint counsel to the child or to Father.

         Second, the court failed to enter specific findings regarding
         the statutory factors it considered in making its
         determination.

Father’s Brief at 9.

      Initially, we address Father’s contention that the trial court erred in

failing to appoint counsel to represent him and Child, pursuant to Section

2313, which provides as follows:

         § 2313. Representation




3
  On March 7, 2016, this Court remanded the matter, retaining jurisdiction,
and directed the trial court to determine whether Father’s appointed
appellate counsel had abandoned him, as counsel failed to timely file a
docketing statement pursuant to Pa.R.A.P. 3517. The trial court convened a
hearing on the issue of abandonment on March 16, 2016. The trial court
entered an order on that same date, finding that Father’s appellate counsel
had not abandoned him, and permitting counsel to remain as Father’s
counsel in the appeal.




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         (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.

         (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.

23 Pa.C.S. § 2313.

      We could rule that Father waived his argument concerning the trial

court’s failure to appoint counsel to represent him at the termination

hearing, as he failed to include this issue in his concise statement and

statement of questions involved portion of his brief. See Krebs v. United

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

appellant waives issues that are not raised in the concise statement of errors

complained of on appeal and the statement of questions involved in the brief

on appeal).    We nevertheless conclude that the petition, the amended

petition, and the notice of hearing, did not advise Father of his constitutional

right to counsel. Further, at the termination hearing, the trial court offered

to continue the matter for Father to retain counsel, but did not explain to

him that he had a right to appointed counsel if he was unable to pay or if

payment would result in financial hardship. N.T., 12/9/15, at 8-9; see In re


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X.J., 105 A.3d 1, 7 (Pa. Super. 2014) (sua sponte remanding the

termination matter for a new termination hearing where the mother was not

advised of her right to counsel for termination proceedings).     We observe

that Father is proceeding in this Court in forma pauperis. Thus, we conclude

that the trial court’s failure to provide proper notice deprived Father of his

right to counsel. Pursuant to In re X.J., we remand the matter for a new

termination hearing, before which the trial court shall advise Father of his

right to counsel, appoint counsel for Father, or affirmatively determine that

Father does not qualify for counsel. See In re X.J., 105 A.3d at 7.

      Indeed, we observe the trial court recognized that it erred by failing to

appoint counsel for Child because it appointed Attorney Denaro and ordered

her to file and serve a report on all parties. In its opinion, the trial court

relied on In re N.A.G., 471 A.2d 871 (Pa. Super. 1984), in which this Court,

upon considering the father’s exceptions to the decree terminating his

parental rights, appointed counsel for the children.    Upon our review, this

Court concluded that the belated appointment of counsel was harmless given

that the children and counsel did not wish to alter the court’s decree.

      Instantly, the trial court acknowledged that when In re N.A.G. was

decided, parties could file exceptions to termination decrees—and that

practice has been discontinued.    The trial court nonetheless suggests that

this Court should consider its order appointing Attorney Denaro and the




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results of her report. The trial court requests us to either affirm or remand,

depending upon the outcome of Attorney Denaro’s report.

      As we are remanding the matter for a new termination hearing with

the opportunity for Father to have appointed counsel in the trial court, we

need not review Attorney Denaro’s report at this time.        On remand, we

direct the trial court to consider Attorney Denaro’s report, and to ensure the

representation of Child at the termination hearing.4

      Decree vacated. Case remanded. Jurisdiction relinquished.

      Stabile, J., joins the memorandum.

      Mundy, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/5/2016




4
  Accordingly, we do not reach Father’s challenge to the trial court’s findings
regarding the statutory factors.




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