J-S25030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ADOPTION OF K.H., A MINOR        :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
 APPEAL OF: G.H., NATURAL FATHER         :
                                         :
                                         :
                                         :
                                         :
                                         :   No. 1807 WDA 2017

              Appeal from the Order Entered September 5, 2017
               In the Court of Common Pleas of Butler County
                  Orphans' Court at No(s): O.A. 17 of 2017


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                             FILED JUNE 11, 2018

      G.H. (“Father”)—a registered sex offender—appeals the order entered

September 5, 2017, in the Court of Common Pleas of Butler County, which

involuntarily terminated his parental rights to his daughter, K.H. (“Child”)

(born November 2007), pursuant to 23 Pa.C.S.A. § 2511(a)(5), (11), and (b)

of the Adoption Act, 23 Pa.C.S.A. §§ 2101–2938. We affirm.

      We summarize the relevant factual and procedural history of this matter

as follows. The orphans’ court adjudicated Child dependent in January 2016.

Shortly before that adjudication, Child’s female half-sibling made allegations

against Father that he had sexually abused her. Child then became known to

the Butler County Children and Youth Agency (“Agency”) and was removed

from the parental home when Child’s birth mother, P.H. (“Mother”), left Child

with an inappropriate caregiver. On April 4, 2017, the Agency filed a petition

for involuntary termination of Father’s parental rights. The orphans’ court
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appointed Susan B. Lope, Esquire, as “Counsel or Guardian Ad Litem” for

Child. It is apparent from the record that Attorney Lope acted as Child’s legal

counsel and not as her guardian ad litem.1

       Ultimately, the orphans’ court held a hearing on the Agency’s petition

for involuntary termination of Father’s parental rights.2 At the hearing, Father

was incarcerated because of his guilty pleas to statutory sexual assault and

involuntary deviate sexual intercourse. Father did not appear at the hearing

and did not request the appointment of counsel prior to the hearing. At the

hearing, Attorney David Montgomery represented the Agency. Attorney Lope

____________________________________________


1  Although the order does not indicate whether Attorney Lope is to act as
counsel or as guardian ad litem, the following discussion at the hearing makes
it apparent that Attorney Lope acted as counsel for Child:

       THE COURT:           Ms. Lope, as counsel for Child, do you have
                            anything you want to put on the record today?

       MS. LOPE:            I don’t. I support termination, both the
                            confirmation of Mom and termination of Dad’s
                            rights under the current circumstances.

N.T., Termination Hearing, 8/4/17, at 19.

Further, on appeal, Attorney Lope, as counsel for Child, filed a joint brief for
appellees with the Agency.

2 Mother executed an adoption consent prior to the hearing. The orphans’
court later conducted the hearing on the Agency’s petition to confirm consent
to adoption. The record indicates that the orphans’ court “would be accepting
and adopting the consent,” but would “hold that and take that under
advisement until we have concluded with [Father’s] portion of the case.” N.T.,
Termination Hearing, 8/4/17, at 9. The outcome of the petition to confirm
consent to adoption is not apparent from the certified record.


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attended the hearing as counsel for Child. The Agency called one witness,

caseworker Tiffany Crotzer. The orphans’ court terminated the parental rights

of Father to Child.

       On October 11, 2017, the clerk of orphans’ court received a notice of

appeal mailed by Father as well as a motion for appointment of counsel. The

orphans’ court then issued an order requiring Father to provide proof of the

date he deposited his notice of appeal in the prison mail system. In response,

Father provided a cash slip indicating he placed his notice of appeal into the

prison mail system on October 6, 2017. The orphans’ court determined that

the order terminating Father’s rights was mailed to him on September 8, 2017,

and that the notice of appeal was deposited with prison officials on October 6,

2017. This timeline, which is supported by the record, renders Father’s appeal

timely pursuant to the “prisoner mailbox rule.”

       The orphans’ court issued an order appointing counsel for Father and

also ordered Father to file a concise statement of errors complained of on

appeal. Father filed a timely pro se concise statement of errors complained of

on appeal and counsel for Father also filed a concise statement of errors

complained of on appeal raising additional matters, 3 which we will consider,

____________________________________________


3 Father failed to file a concise statement of errors complained of on appeal
with his notice of appeal. See Pa.R.A.P. 905. As neither the Agency nor Child
assert prejudice from Father’s failure to file a concise statement with his notice
of appeal, and Father complied with the orphans’ court’s order to file a concise



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as no party asserts prejudice from its untimely filing. See In re K.T.E.L., 983

A.2d 745, 747-748 (Pa. Super. 2009).

       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 their 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 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 10.

       We review an appeal from the termination of parental rights with the

following standard:

              [A]ppellate courts must apply an abuse of discretion
       standard when considering a trial court’s determination of a
       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. If the factual findings are
____________________________________________


statement, we do not find his issues waived. See In re K.T.E.L., 983 A.2d
745, 747 (Pa. Super. 2009) (holding that there is no per se rule mandating
quashal or dismissal of a defective notice of appeal in children’s fast track
cases).


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      supported, appellate courts review to determine if the trial court
      made an error of law or abused its discretion. As has been often
      stated, an abuse of discretion does not result merely because the
      reviewing court might have reached a different conclusion.
      Instead, a decision may be reversed for an abuse of discretion
      only upon demonstration of manifest unreasonableness, partiality,
      prejudice, bias, or ill-will.

            [T]here 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. 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 S.P., 47 A.3d 817, 826-827 (Pa. 2012) (internal citations

omitted).

      Father   first   contends   the   orphans’   court   deprived   him   of   his

constitutionally protected right to counsel during the termination of parental

rights hearing. Father asserts “the record with the trial court is completely

devoid of any documents indicating that [Father] received clear instructions

on how to petition for counsel or that he had the right to have counsel

represent him in the termination hearing if he could not afford to hire counsel

privately.” Father’s Brief, at 23. Father also argues that his counsel in the

dependency proceedings did not receive notice regarding the termination

hearing although the orphans’ court scheduled the termination hearing for the


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same time as a goal change hearing involving Child. Accordingly, Father claims

“It is clear,” Father explains, that he “qualifies for court–appointed counsel

and was denied the opportunity to have one appointed to him during the

[termination] proceedings…. Therefore, [Father] is entitled to a new hearing

on the matter with an opportunity to have counsel appointed to represent his

interests.” Id., at 28. We disagree.

      The appointment of counsel for parents in involuntary termination

proceedings is controlled by 23 Pa.C.S.A. § 2313, which provides, in pertinent

part 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.A. § 2313(a.1) (emphasis added).

      It is a parent’s sole responsibility to request an attorney. We have only

required that a parent receive proper notice of the right to counsel before

exercising that responsibility. That notice requires informing a parent if he

cannot afford an attorney, one will be provided to him upon his request and

must also provide instructions on how to obtain a court-appointed attorney.

See In re A.R., 125 A.3d 420, 422-423 (Pa. Super. 2015); In re Adoption

of J.N.F., 887 A.2d 775, 780 (Pa. Super. 2005).

      Here, the orphans’ court determined that the Agency personally served

the petition for involuntary termination of parental rights notice upon Father


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on May 19, 2017. The court also observed that the petition for involuntary

termination of parental rights notice included the following language:

      A petition has been filed asking the court to put an end to all
      rights/duties you have to your child(ren): [Child.]

      The court has set a hearing to consider ending your rights/duties
      to your child(ren). That hearing will be held in courtroom [seven]
      located in the Butler County Courthouse/Government Center on
      the [fourth] day of August, 2017, at 9:00 o'clock. a.m.

      If you do not appear at this hearing, the court may decide that
      you are not interested in retaining your rights to your child(ren)
      and your failure to appear may affect the court’s decision on
      whether to end your rights to your child(ren). 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 child(ren)
      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.

                                Sarah Edwards, M.A., J.D.
                                Register of Wills Clerk of Orphans’ Court
                                Government/Judicial Center
                                Butler PA 16003-1208
                                724.284.5348

Orphans’ Court Opinion, 12/28/17, at 4 (emphasis added).

      Father did not request the appointment of counsel with regard to the

termination petition prior to the termination hearing. Instead, Father first

requested the appointment of counsel on October 11, 2017, well after the

termination hearing. Once Father requested counsel, the orphans’ court

appointed counsel. Accordingly, the orphans’ court determined that no

violation of Father’s due process rights occurred.



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      The language of the petition for involuntary termination of parental

rights notice comports with proper notice requirements. See In re A.R., 125

A.3d at 422-423; In re Adoption of J.N.F., 887 A.2d at 780. The notice

instructed Father who to contact if he did not have an attorney or could not

afford one with respect to the petition for involuntary termination of parental

rights. Although Father received clear instructions, he did not request court-

appointed counsel. Based upon our review of the record, we conclude that the

court’s findings and conclusions are supported by the record and discern no

abuse of discretion or error of law. We proceed to the merits of the termination

of parental rights under § 2511(a) and (b) of the Adoption Act.

      Termination of parental rights is governed by § 2511 of the Adoption

Act. 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. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

      We may affirm the trial court’s decision regarding the termination of

parental rights with regard to any one subsection of § 2511(a). See In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). The orphans’ court

terminated the parental rights of Father to Child pursuant to § 2511(a)(5),

(a)(11), and (b). We will focus our analysis on subsections (a)(11), 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:


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                                        ***

            (11) The parent is required to register as a sexual offender
            under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration
            of sexual offenders) or to register with a sexual offender
            registry in another jurisdiction or foreign country.

      (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.

      We begin with subsection (a). In terminating Father’s parental rights

under subsection (a)(11), the court stated:

      Following the [a]djudication hearing, Father entered a guilty plea
      on August 29, 2016, on one charge of [s]tatutory [s]exual
      [a]ssault, 18 Pa.C.S.A. § 3122(a), and one count of [i]nvoluntary
      [d]eviate [s]exual [i]ntercourse, 18 Pa.C.S.A. § 3123(a)(7). On
      September 22, 2016, Father was sentenced to one to two years’
      imprisonment for the [s]tatutory [s]exual [a]ssault conviction to
      run concurrently with a sentence of three to six years’
      imprisonment     for    the    [i]nvoluntary [d]eviate   [s]exual
      [i]ntercourse conviction. Father was also sentence[d] to register
      as a lifetime sexually violent predator.

Orphans’ Court’s Findings of Fact and Order of Court, 9/1/17, at 1-2

(unnumbered).

      Father acknowledges that he “pled guilty [to] one [count] of [s]tatutory

[s]exual [a]ssault and one count of [i]nvoluntary [d]eviate [s]exual

[i]ntercourse. He is currently incarcerated at the State Correctional Institute

in Somerset, Pennsylvania.” Father’s Brief, at 11. At the termination hearing,

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the Agency presented evidence that Father is a sexually violent predator with

a lifetime registration requirement. See N.T., Termination Hearing, 8/4/17, at

10.

      Required sex offender registration mandates termination of parental

rights. Thus, we conclude that the orphans’ court did not abuse its discretion

in terminating Father’s parental rights.

      We proceed to review whether the requirements of subsection (b) are

satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super.

2008) (en banc). The requisite analysis is as follows:

      Section 2511(b) focuses on whether termination of parental rights
      would best serve the developmental, physical, and emotional
      needs and welfare of the child. As this Court has explained,
      Section 2511(b) does not explicitly require a bonding analysis and
      the term ‘bond’ is not defined in the Adoption Act. Case law,
      however, provides that analysis of the emotional bond, if any,
      between parent and child is a factor to be considered as part of
      our analysis. While a parent’s emotional bond with his or her child
      is a major aspect of the subsection 2511(b) best-interest analysis,
      it is nonetheless only one of many factors to be considered by the
      court when determining what is in the best interest of the child.

            [I]n addition to a bond examination, the trial court can
            equally emphasize the safety needs of the child, and
            should also consider the intangibles, such as the love,
            comfort, security, and stability the child might have
            with the foster parent. Additionally, this Court stated
            that the trial court should consider the importance of
            continuity of relationships and whether any existing
            parent-child bond can be severed without detrimental
            effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citations

and quotation marks omitted; brackets in original).



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      “In cases where there is no evidence of any bond between the parent

and child, it is reasonable to infer that no bond exists. The extent of any bond

analysis, therefore, necessarily depends on the circumstances of the particular

case.” In re K.Z.S., 946 A.2d 753, 762-763 (Pa. Super. 2008) (citation

omitted). When evaluating a parental bond, “[t]he court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well. Additionally, Section 2511(b) does not require a formal bonding

evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal

citations omitted).

      As Father’s third and fourth issues are related, we will address them

together. Father asserts the court failed to make findings of fact or conduct

an analysis as to the nature and strength of the bond and relationship of Child

with Father, asserting that the orphans’ court did not conduct an inquiry

regarding any type of bond Child may have with Father. Father also maintains

that the Agency did not present a bonding expert in the evidentiary hearing.

Additionally, Father argues that the record is devoid of evidence regarding the

effect that termination of Father’s parental rights will have on Child and that

the orphans’ court’s analysis is “cursory and unsupported.” Father’s Brief, at

33-34.

      In addressing subsection (b), the court stated:

      [T]he [o]rphans’ [c]ourt found that Child was safe and bonded
      with the kinship family and that Child was included in family

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      activities, vacations, and holiday events. Orphans’ Court Opinion,
      9/1/2017, at 2. The kinship family also ensured that Child
      maintained relationships with [her] siblings. Id. Consequently,
      considering the quality of the relationship between the kinship
      family and Child together with the nature and underlying
      circumstances of Father’s criminal convictions, it is clear that
      termination of Father’s parental rights best serves the needs and
      welfare of Child.

      Although the [o]rphans’ [c]ourt noted that Father continued to
      send Child approximately one card or letter a month for six
      months while incarcerated, Father did not participate in any
      services or complete any programs while incarcerated. Id.

Orphans’ Court Rule 1925(a)(2) Memorandum Opinion, 12/28/17, at 10-11.

      Upon review, we again discern no abuse of discretion. At the hearing,

Ms. Crotzer, the caseworker assigned to the matter involving Child, testified

regarding her awareness of Father’s incarceration and that a child permanency

plan from January 2017 included Father’s successful completion of a sex

offender treatment program. See N.T., Termination Hearing, 8/4/17, at 12-

13. Ms. Crotzer did not believe Father completed a sex offender treatment

program, and Father did not return signed releases so Ms. Crotzer could obtain

information regarding Father’s completion of a sex offender treatment

program. See id., at 13. Ms. Crotzer also had no information regarding Father

completing any programs or services to promote and benefit his relationship

with Child. See id. She testified that Father sent Child letters approximately

once a month. See id., at 13, 17. Child responds by writing letters with her

therapist. See id., at 17-18. Ms. Crotzer testified Child is doing very well in

her foster home. See id., at 14. Child is loved in her placement home,



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participates in Girl Scouts, goes to sporting events, and camp. See id., at 14-

15. And she is safe in her placement and has become part of the family. See

id., at 15-16.

      Here, the record supports the orphans’ court’s finding that Child’s

developmental, physical and emotional needs and welfare favor termination

of Father’s parental rights pursuant to subsection (b). The record contains

sufficient evidence to allow the orphans’ court to make a determination of

Child’s needs and welfare, and as to the bond between Father and Child such

that, if severed, it would not have a detrimental impact on Child. Contrary to

Father’s argument, there is no requirement for the orphans’ court to utilize

expert testimony regarding a bond to make this determination. See In re

Z.P., 994 A.2d at 1121.

      Order affirmed.

      Judge Ott joins the memorandum.

      President Judge Gantman concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2018



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