J-S69029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: M.L.M., A           :   IN THE SUPERIOR COURT OF
MINOR                                   :        PENNSYLVANIA
                                        :
                                        :
APPEAL OF: T.R., NATURAL FATHER         :
                                        :
                                        :
                                        :
                                        :   No. 1009 WDA 2017

                    Appeal from the Decree June 9, 2017
  In the Court of Common Pleas of Butler County Orphans' Court at No(s):
                               O.A. 2 of 2017


BEFORE:    BOWES, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                      FILED DECEMBER 18, 2017


      T.R. (“Father”) appeals from the decree dated June 8, 2017, and

entered on June 9, 2017, granting the petition filed by K.A.B. (“Mother”), to

involuntarily terminate his parental rights to M.L.M., born in October of 2009

(“Child”), his female child with Mother, pursuant to the Adoption Act, 23

Pa.C.S. § 2511, so that Mother’s husband, J.A.B., (“Stepfather”) may adopt

Child. We vacate and remand.

      The trial court set forth the factual background and procedural history

of this appeal as follows.

            . . . This case arises out of [Mother’s] Petition to
      Involuntarily Terminate Parental Rights of the Birth Father, filed
      on or about January 19, 2017.           Said Petition was filed
      simultaneously with a Petition for Adoption, filed on behalf of
      [J.A.B.], Step-Father [sic] of [Child].



____________________________________
* Former Justice specially assigned to the Superior Court.
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             Upon receipt [of] the aforesaid Petitions, a hearing was
       scheduled for April 3, 2017. On or about April 5, 2017, counsel
       for Natural Mother requested a continuance so as to perfect
       service of notice of said hearing on [Father]. This [c]ourt
       granted the request for continuance, and rescheduled the
       hearing for June 8, 2017. On or about May 1, 2017, an Affidavit
       of Personal Service was filed evidencing that on April 21, 2017,
       at   10:23    A.M.,    [A.R.],  [Father’s  mother,     (“Paternal
       Grandmother”)], was personally served with the Petition to
       Involuntarily Terminate Parental Rights of the Birth Father, as
       well as the Order of Court under date of March 31, 2017,
       scheduling the termination hearing. Said service [on Father]
       was effectuated. . . .

              On or about June 8, 2017, at the time set for a hearing on
       [the termination petition], [Natural Mother] appeared along with
       her counsel Gail E. Suhr, Esquire. Lynn M. Patterson, Esquire,
       appeared on behalf of the proposed adoptee, [Child]. [Natural
       Father] appeared as a Self–Represented Litigant.             After
       consideration of the contents of Natural Mother’s Petition. . .,
       and [the] hearing thereon, [the trial court] issued a Decree
       Terminating Parental Rights on or about June 8, 2017, which
       extinguished the parental rights and duties of [Natural Father]
       relative to [Child].

Trial Court Opinion, 7/25/17, at 1-2.1

       On July 3, 2017, Father filed, in the trial court, a petition for in forma

pauperis status and court-appointed counsel, alleging that he was indigent,

and attaching supporting documentation of his financial status.         On that

same date, the trial court granted Father’s petition, and appointed Attorney

Nicole Thurner-Kievit to represent him on appeal. On July 7, 2017, Father,

____________________________________________


1
  On March 29, 2017, the trial court appointed Attorney Lynn M. Patterson to
represent Child with regard to the termination petition. Attorney Patterson
appeared on behalf of Child at the termination hearing, and filed a brief on
behalf of Child in this appeal.



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through Attorney Kievit, timely filed a notice of appeal and concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b) with regard to the termination decree.

      In his brief on appeal, Father raises the following issues:

      1. Whether the trial court committed an abuse of discretion and
      an error of law in proceeding with the hearing to terminate
      Appellant’s parental rights to the Child without Appellant having
      the benefit of being represented by counsel, thereby violating his
      due process rights?

      2. Whether the trial court committed an error of law in finding
      that the moving party met her burden of proof pursuant 23
      Pa.C.S.A. §2511(a) and, based on that finding, erred in
      terminating Appellant’s parental rights to the Child?

      3. Whether the trial court erred when it failed to make findings
      of fact as to the nature and strength of the bond and relationship
      of the Child with the parents or guardian?

      4. Whether the trial court failed to find that the Guardian Ad
      Litem failed to fully and faithfully investigate the nature and
      strength of the bond between Appellant and the Child as well as
      the developmental, physical, and emotional needs of the Child?

      5. Whether the trial court erred when it failed to conduct an
      analysis of its findings pursuant to 23 Pa.C.S.A. §2511(b)
      regarding the best interests of the Child, taking into primary
      consideration the developmental, physical, and emotional needs
      of the Child?

Father’s Brief, at 8-9.

      Termination of parental rights is governed by the Adoption Act, 23

Pa.C.S. §§ 2101-2938.     In reviewing an appeal from a decree terminating

parental rights, we adhere to the following standard:

           [A]ppellate courts must apply an abuse of discretion
      standard when considering a trial court’s determination of a

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     petition for termination of parental rights. As in dependency
     cases, our standard of review requires an appellate court to
     accept the findings of fact and credibility determinations of the
     trial court if they are supported by the record. In re: R.J.T.,
     608 Pa. 9, [19], 9 A.3d 1179, 1190 (Pa. 2010). If the factual
     findings are supported, appellate courts review to determine if
     the trial court made an error of law or abused its discretion.
     Id.; R.I.S., [614 Pa. 275, 284,] 36 A.3d 567, 572 (Pa. 2011)
     (plurality opinion)]. As has been often stated, an abuse of
     discretion does not result merely because the reviewing court
     might have reached a different conclusion.        Id.; see also
     Samuel Bassett v. Kia Motors America, Inc., 613 Pa. 371[,
     455], 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, [575 Pa.
     647, 654-655], 838 A.2d 630, 634 (Pa. 2003). Instead, a
     decision may be reversed for an abuse of discretion only upon
     demonstration      of    manifest unreasonableness,     partiality,
     prejudice, bias, or ill-will. Id.

           As we discussed in R.J.T., there are clear reasons for
     applying an abuse of discretion standard of review in these
     cases. We observed that, unlike trial courts, appellate courts are
     not equipped to make the fact-specific determinations on a cold
     record, where the trial judges are observing the parties during
     the relevant hearing and often presiding over numerous other
     hearings regarding the child and parents. R.J.T., [608 Pa. at
     28-30], 9 A.3d at 1190. Therefore, even where the facts could
     support an opposite result, as is often the case in dependency
     and termination cases, an appellate court must resist the urge to
     second guess the trial court and impose its own credibility
     determinations and judgment; instead we must defer to the trial
     judges so long as the factual findings are supported by the
     record and the court’s legal conclusions are not the result of an
     error of law or an abuse of discretion. In re Adoption of
     Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 616 Pa. 309, 325-326, 47 A.3d 817, 826-827

(2012).

     The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

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      Moreover, we have explained, “[t]he standard of clear and convincing

evidence is defined as testimony that is so “clear, direct, weighty and

convincing as to enable the trier of fact to come to a clear conviction,

without hesitance, of the truth of the precise facts in issue.” Id. (quoting In

re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

      This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of section

2511(a).    See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc). We will consider section 2511(a)(1) and (b). Section 2511 provides,

in relevant part, as follows:

      § 2511. Grounds for involuntary termination

      (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.

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23 Pa.C.S. § 2511.

      First, Father argues that the trial court committed an abuse of

discretion and error of law in proceeding with the termination hearing when

he did not have the benefit of representation by counsel, in violation of 23

Pa.C.S. § 2313(a.1).   See Father’s Brief, at 12. Father claims that he was

not afforded the opportunity to petition for court-appointed counsel, in

violation of his due process rights. Id. Father requests a new termination

hearing with counsel present to represent his interests. Id.

      The appointment of counsel in involuntary termination proceedings is

governed by Section 2313(a.1) of the Act, which provides as follows.

      (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(a.1).

      In In re Adoption of C.A.S., 166 A.3d 353 (Pa. Super. 2017), this

Court recently stated as follows:

      Parents in involuntary termination of parental rights proceedings
      have a constitutional right to counsel. In re X.J., 105 A.3d 1, 4
      (Pa. Super. 2014) (citing In re J.T., 983 A.2d 771, 774 (Pa.
      Super. 2009)). This Court has held that trial courts need not
      appoint counsel for indigent parents automatically. In re A.R.,
      125 A.3d 420, 424 (Pa. Super. 2015). However, courts must
      advise parents of their right to petition for counsel. X.J., 105
      A.3d at 4 (citing In re Adoption of R.I., 455 Pa. 29, 312 A.2d
      601, 603 (Pa. 1973)). A parent waives his or her right to
      counsel if he or she is provided with clear instructions on how to
      petition for counsel, but fails to take action. See A.R., 125 A.3d

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      at 424 (citing In re Adoption of J.N.F., 887 A.2d 775, 780 (Pa.
      Super. 2005)).

In re Adoption of C.A.S., 166 A.3d at 356.

      Here, the trial court stated the following:

             It is clear that while court appointed counsel is available to
      indigent parents, said parent must request same by petitioning
      the [c]ourt. In re Adoption of J.N.F., 887 A.2d 775 (Pa.Super.
      2005) (holding that the [c]ourt did not abuse its discretion in
      failing to appoint counsel where the natural father of the child
      was incarcerated, did not petition the trial court for court
      appointed counsel, nor did he attempt to communicate with the
      pertinent court administration office to determine the procedure
      to obtain court appointed counsel). Additionally, even upon
      request of the parent, the appointment of counsel is not
      guaranteed. In re: A.R., 125 A.3d 420 (Pa.Super. 2015).

            In the instant matter, Appellant did not petition this
      [c]ourt for court-appointed counsel. Further, on the record, this
      [c]ourt placed Appellant under oath and colloquied him relative
      to his right to counsel. See Transcript, Involuntary Termination
      of Parental Rights Proceedings, In Re: M.L.M., June 8, 2017, 3-
      4. At that time and after having been advised by this [c]ourt
      that he had a right to counsel, Appellant waived said right. Id.

Trial Court Opinion, 7/25/17, at 3-4.

      The petition for the termination of Father’s parental rights does not

include a notice to Father regarding his right to counsel, nor is there any

such notice to Father separately filed in the record. The notes of testimony

from the termination hearing reflect the following exchange occurred

between the court and Father:

      THE COURT: Are you under the influence of any drugs or alcohol
      today, sir?

      [FATHER]: No.


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      THE COURT: Do you understand this is the time that’s been
      scheduled for a hearing on a petition to involuntarily terminate
      your parental rights to [Child]?

      [FATHER]: Yes.

      THE COURT: Do you understand you have the right to counsel
      today?

      [FATHER]: Yes.

      THE COURT: Are you desiring to proceed without counsel?

      [FATHER]: Simple man. Can’t afford one.

      THE COURT: Are you desiring to proceed without counsel?

      [FATHER]: Yes.

      THE COURT: You’re waiving your right to counsel?

      [FATHER]: Yes.

N.T., 6/8/17, at 3-4.

      Later in the testimony, during the questioning of Father by Mother’s

counsel, the following exchange occurred between Mother’s counsel and

Father:

      Q [Father], is it true that if you truly wanted to see your
      daughter, you could have hired an attorney to show up today;
      isn’t that true?

      A I guess I could have if I had the money to do so.

      Q But you didn't, did you?

      A I’m on unemployment right now. I don’t have that money.

      Q So for the last 18 months, you’ve had no contact; isn’t that
      true?


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     A Yeah, I guess it’s been about 18 months. If not – I’ve had no
     contact with my daughter, correct. I have tried to get in contact
     with [Mother] and did not.

     Q So you could bring the whole family here today. You obviously
     have transportation to come to a court proceeding; isn’t that
     true?

     A Correct.

N.T., 6/8/17, at 14-15.

     In In re J.N.F., the notice attached to the termination petition

provided as follows:

     You have a right to be represented at the hearing by a lawyer;
     however, it is not necessary to have a lawyer at this hearing. A
     court-appointed attorney will be assigned to represent you if you
     cannot afford legal help.          The Family/Orphans’ Court
     Administrator will be present at this hearing. She will give you
     an application for request of a court-appointed attorney. This
     attorney will represent you at your [termination hearing]. If you
     have any questions, contact [the Family/Orphans’ Court
     Administrator].

In re J.N.F., 887 A.2d at 780.

     This Court found that the father had failed to exercise his right to

counsel, reasoning as follows:

     The above language was sufficient to communicate to Father the
     following: (1) if he could not afford an attorney, one would be
     provided to him upon his request; and (2) he was obliged to
     communicate with the Family/Orphans’ Court Administrator to
     obtain a court-appointed attorney or to obtain the information
     necessary regarding the procedure for obtaining a court-
     appointed attorney. Father did not request a court-appointed
     attorney, and he did not attempt to communicated with the
     Family/Orphans’ Court Administrator to determine the procedure
     to obtain a court-appointed attorney. As such, we are satisfied
     that Father did not petition the trial court for a court-appointed
     attorney. See 23 Pa.C.S. § 2313(a.1) (indigent parent must

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      petition trial court for counsel in termination proceedings).
      Consequently, we are satisfied that the trial court did not abuse
      its discretion by not appointing counsel for Father. As such,
      Father’s argument fails.

Id.

      In In re A.R., the petition for the termination of the father’s parental

rights contained the following notice:

      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
      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

Id., 125 A.3d at 422-423.

      In In re A.R., this Court found that the father had proper notice of the

hearing and his right to counsel, and clear notice regarding how to obtain a

lawyer if he could not afford one. Thus, we rejected the father’s allegation

that the trial court abused its discretion by failing to advise him of his right

to counsel and proceeding with the termination hearing, despite his request

for a continuance to allow him time to obtain counsel.        Id.    This Court

likewise rejected the father’s contention that the trial court had previously

deemed him indigent, and, therefore, should have appointed counsel to

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represent him in the termination proceedings, in accordance with 23 Pa.C.S.

§ 2313(a.1). Citing In re J.N.F., we found that the notice clearly instructed

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

attorney or could not afford counsel, but he had failed to do so, to his peril.

In re A.R., 125 A.3d at 424.

      Recently, in In re Adoption of C.A.S., supra, this Court found that

the father in the termination proceedings had been served with at least five

documents providing notice to him of how to seek court-appointed counsel

and/or legal assistance.   The letter from the petitioners’ counsel, and the

additional notice of the termination petition and hearing, instructed the

father that he should request counsel by completing the enclosed in forma

pauperis statement, and delivering it to the Clerk of Orphans’ Court and

Register of Wills for Cambria County.        The notice of hearing for the

termination petition, the notice required by Act 101 of 2010, and the

acknowledgment of notice of voluntary agreement law instructed the father

that he should obtain counsel and/or legal assistance by contacting Laurel

Legal Services. The panel of this Court stated:

            Of the five sets of instructions that [the father] received
      from the [petitioners’] counsel, three of them instructed [the
      father] that he could request counsel and/or legal assistance
      from Laurel Legal Services. Because it appears that [the father]
      may have been misled by these conflicting and inaccurate
      instructions, we cannot find that he waived his right to counsel.

             Accordingly, we conclude that the orphans’ court erred by
      failing to continue the termination proceedings so that [the
      father] could petition for court-appointed counsel. We therefore

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      vacate the order terminating [the father’s] parental rights, and
      we remand [the] matter to the trial court for a new termination
      hearing, prior to which the court shall determine whether [the
      father] continues to qualify for court-appointed counsel, and
      shall appoint counsel for [the father], if necessary.

In re Adoption of C.A.S., 166 A.3d at 357.

      Upon our careful review of the record in the present appeal, we find

that the trial court abused its discretion when it determined that Father had

waived his right to appointed counsel in this matter. Unlike the situation in

In re Adoption of J.N.F., and In re A.R., there is nothing in the record,

including the on-record colloquy by the trial court, to suggest that Father

received notice of his right to petition for court-appointed counsel based on

his purported inability to afford counsel.      The lack of any such notice to

Father is akin to the father’s receipt of the confusing notice in In re

Adoption of C.A.S.       that   necessitated    this    Court’s    vacation   of   the

termination order and remand to the trial court for further proceedings.

      Based on the foregoing, we vacate the decree terminating Father’s

parental rights.   We remand the matter to the trial court for a new

termination hearing, prior to which the court shall determine whether Father

qualifies for court-appointed counsel, and shall appoint counsel for Father, if

necessary.

      Decree   vacated   and    remanded       for     further    proceedings,     with

instructions that, prior to the new termination hearing, the court shall




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determine whether Father qualifies for court-appointed counsel, and shall

appoint counsel for Father, if necessary. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2017




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