J-S05030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: P.G.F., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: K.F., NATURAL FATHER            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1464 WDA 2018

               Appeal from the Order Entered September 27, 2018
       In the Court of Common Pleas of Bedford County Orphans' Court at
                             No(s): No. 3 AD 2018

BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 13, 2019

        K.F. (Father) appeals the September 27, 2018 order granting the

petition of T.G.H. (Mother) and E.N.H. (Husband) to terminate Father’s

parental rights to his minor son, P.G.F., born in July 2012 (Child). Following

careful review, we are constrained to vacate the order, and remand for further

proceedings consistent with this memorandum.

        Mother and Father, who never married, are the parents of Child, who

was born in July 2012. See N.T., 7/31/18, at 6-7. At the time of Child’s birth,

Mother and Father were living with Mother’s parents (Maternal Grandparents).

Id. at 7. However, when Child was approximately a month-and-a-half or two




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*   Retired Senior Judge assigned to the Superior Court.
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months old, Mother and Father ended their romantic relationship, and Father

moved out of the residence. Id. at 7-8.

       Mother and Child continued to reside with Maternal Grandparents until

Maternal Grandparents ended their marriage. Id. at 9-10. Mother and Child

moved with Maternal Grandmother among several residences in Bedford

County. Id. at 8-10. In 2013, Mother filed a custody action against Father.

Id. at 11. In May 2014, Mother and Father entered into a custody agreement,

where Father had physical custody every other weekend. Id. at 12. Father

was able to exercise his custody rights for approximately eight months, when

Child was approximately three years old. Id. at 20.

       In October 2017, Mother married Husband.          Id. at 5.    They began

residing together immediately after marriage.       Id. at 8.   On February 27,

2018, Mother and Husband filed a petition seeking to involuntarily terminate

Father’s parental rights. The court appointed Carole Rose, Esq., as guardian

ad litem/legal counsel to represent Child.1

       The court held evidentiary hearings on July 31, 2018, and September

11, 2018.      Mother, D.H. (“Paternal Grandmother”), Husband, and Father




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1  See In re T.S., 192 A.3d 1080, 1092 (Pa. Super. 2018) (noting that where
there is no conflict between a child’s best and legal interests, a guardian ad
litem may serve dual roles and still satisfy the child’s statutory right to counsel
in involuntary termination proceedings).


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testified. Attorney Rose was present at the hearing and cross-examined the

witnesses.

      Mother testified that when she and Father first ended their relationship

and up until the time that Child was approximately one year old, they

attempted to co-parent. Id. at 10-11. Following the custody agreement in

May 2014, Father exercised his custody rights for approximately eight months,

or “a few” months into 2015.     Id. at 17-23.   However, visitation “slowed

down,” and Paternal Grandmother became more involved with Child and took

Child when Father was to exercise his custody rights. Id. at 12-14. Mother

claimed that, over the last five years, custody had always been shared

between Mother and Paternal Grandmother, and Father had not picked up

Child from Mother’s custody in that time. Id. at 14.

      Mother also claimed that Father had no contact with her, and never

inquired about Child on birthdays or holidays, or when Child required surgery

to remove his tonsils and adenoids when Child was three years old. Id. at

15-16. Mother texted Father and sent him Facebook messages about doctor’s

appointments but never received a response. Id. at 15-16, 46-47. Mother

denied that Father or Paternal Grandmother sent Child birthday cards,

Christmas cards, or gifts, although he did give gifts and cards to his other

child. Id. at 29, 35. However, Mother received child support from Father.

Id. at 27.




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      Mother admitted that Child sometimes stated that Father was at

Paternal Grandmother’s house. Id. at 26. However, she disagreed that Child

had an overnight stay with Father in the last three years.     Id. at 29-30.

Mother denied that Child referred to Father as “dad.” Id. at 26. According to

Mother, Child refers to Husband as “dad,” and to Father by his first name, or

as “Grammy [Paternal Grandmother]’s friend.” Id. at 29-31. Mother claimed

that Child did not know Father was his biological father. Id. at 31. Mother

disagreed that she hid her whereabouts from Father or blocked him on social

media. Id. at 20-21, 34. However, on cross-examination, she admitted that

she sent text messages stating that she did not want Father to be around

Child, and that she did not want Child to be taken to Paternal Great-

Grandmother’s house.     Id. at 55-62.      Mother stated that if Father had

contacted her at the end of 2015 regarding his court-ordered custody periods,

she probably would have said “yes,” but as time passed without his visits, she

would have said “no”. Id. at 63-64.

      Mother testified that she wishes for Husband to be able to adopt Child,

because he performs fatherly duties for Child, and because Mother and

Husband are expecting a child of their own. Id. at 39-40. Mother stated she

would not prevent Paternal Grandmother from seeing Child if Father’s parental

rights were terminated. Id. at 43-44.

      Paternal Grandmother testified that Father has seen Child “even more

than what [Mother] has said or maybe even realized.” See N.T., 9/11/18, at


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7. Paternal Grandmother indicated she does not refer to Father as such in

front of Child, and instead calls Father by his first name to avoid confusing

Child. Id. at 8. Although Father is often around when Paternal Grandmother

has custody of Child, when Mother told Paternal Grandmother that she was

not allowed to have Father around Child, she obeyed. Id. at 10. Paternal

Grandmother believed that Mother made it difficult for Father to be in Child’s

life and this was about the time that his relationship with Child changed. Id.

at 13, 32. At first, Father was there “one hundred percent” but that eventually

“it just seemed like it was easier for him not to fight and argue to get [Child].”

Id. at 14. Paternal Grandmother also admitted that Father had not had a

father-son relationship with Child for the last two years. Id. at 22. However,

she attributed this to the “strain” with Mother and noted that Father was a

good father to his other child. Id. at 38. Paternal Grandmother denied that

she took Child because Father was not caring for Child appropriately. Id. at

46-47.

      Husband testified that his relationship with Child is “really good,” and

that he tries to not be involved in any issues involving Mother, Father, and

Child. Id. at 53-54. Husband stated that Child calls him “dad,” and respects

him as a paternal figure. Id. at 55-56. Child has never brought up Father to

Husband. Id. at 55. In cross-examining Husband, Attorney Rose noted she

had spoken with Child:

      [Attorney Rose]. So, when I spoke with [Child,] I asked him who
      he lived with and he named mom, and he must have named your

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      parents[’] names and your brothers, but I had to ask him several
      times to get him to say it. He said, [Husband’s nickname].

      [Husband]. Yeah. Could be it.

      [Attorney Rose]. And I said, I’m sorry, I had to ask him a couple
      times to repeat that. He was very specific he lived with his mom
      and [Husband’s nickname]. I had to look at the petition for your
      name and he said yes. But he never referred to you as dad. Does
      that surprise you?

      [Husband]. Not necessarily.

Id. at 61. Husband explained that Child, in addition to “dad,” occasionally

calls Husband by his nickname. Id. at 61.

      Father testified that he has two children: Child and a younger daughter.

Id. at 64-65. Although he has no custody order for his daughter, he has had

no issues sharing custody with his daughter’s mother.     Id. at 65.   Father

testified, that, at the time of Child’s birth, he and Mother were both working

full time, and maternal and paternal grandparents helped care for Child. Id.

at 68. When Father was home, he cared for Child, including changing his

diaper.   Id. at 68.   After Father and Mother separated, Father had partial

custody of Child at his home every other weekend, and one overnight during

the week. Id. at 68-69. At some point, Paternal Grandmother began taking

custody of Child; Father claimed this was because his daughter’s mother and

Mother did not get along. Id. at 72-73. Father then “stopped trying” because

he was “tired of the games.” Id. at 74-75. Father also noted that about a

year prior to the termination hearing, Mother had asked him to voluntarily

relinquish his parental rights. Id. at 100.

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      With respect to his interactions with Child, Father described Child as not

talkative, and that Father did not want to “push” himself onto Child or scare

him away. Id. at 80. Father stated that although Child calls Father by his

first name, Child did “not always” do so. Id. at 94. Father testified that he

was present for several of Child’s birthdays, including Child’s fourth, and

Christmas in 2017. Id. at 82-83. Father denied taking inappropriate care of

Child, in response to Mother’s averments that Father had failed to change

Child’s diapers. Id. at 83-84. Father stated he could not attend Child’s tonsil

surgeries because he had to work. Id. at 85. Father acknowledged that the

garage where he works is very close to Paternal Grandmother’s residence, and

he would often walk to the house to see Child. Id. at 95. As noted above,

Attorney Rose cross-examined the witnesses, but she did not state Child’s

preferred outcome. We acknowledge that Attorney Rose argued for the Child’s

best interests, id. at 104-05, but did not articulate Child’s preferences.

      On September 27, 2018, the court terminated Father’s parental rights

pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). Father timely filed a notice of

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

1925(a)(2)(i) and (b).

      On appeal, Father raises the following issue for our review:

      Whether the trial court erred/abused its discretion in determining
      [Mother] had established a legal basis through clear and
      convincing evidence for terminating Appellant’s parental rights
      pursuant to 23 Pa.C.S.A. § 2511(a)(1), as the [c]ourt failed to
      give appropriate weight to the natural mother’s efforts to thwart


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       the father-son relationship, and as such the [c]ourt’s finding is not
       supported by the record?

See Father’s Brief at 5 (suggested answer omitted).2

       We review cases involving the termination of parental rights according

to the following standards.

       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) (internal citations and quotations

omitted).

       Upon review of the record and prior to addressing the merits of Father’s

appeal, we must first address sua sponte the representation provided by

Child’s legal counsel. See In re K.J.H., 180 A.3d 411, 413-14 (Pa. Super.

2018).      Our Supreme Court, in In re Adoption of L.B.M., 161 A.3d 172,

183-84 (Pa. 2017) (plurality), held that 23 Pa.C.S. § 2313(a) requires that


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2 Attorney Rose’s appellate brief for Child did not state Child’s preferred
outcome. The guardian ad litem argued that the record established that
Father had abandoned his parental duties and faulted Mother and Paternal
Grandmother for their selfish conduct, which led to the termination of Father’s
parental rights. Child’s Brief at 12.


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counsel be appointed to represent the legal interests of any child involved in

contested involuntary termination proceedings. The L.B.M. Court noted that

a child’s legal interests “are synonymous with the child’s preferred outcome,”

but the child’s best interests are determined by the trial court. Id. at 174.

Since L.B.M., this Court has clarified the requirements counsel must meet in

order to provide adequate representation in termination matters. See In re

Adoption of T.M.L.M., 184 A.3d 585, 590 (Pa. Super. 2018) (holding that

counsel must, “at a bare minimum, attempt[] to ascertain the client’s position

and advocat[e] in a manner designed to effectuate that position”).         The

Pennsylvania Supreme Court has held that a guardian ad litem may serve as

legal counsel when there is no conflict between the child’s legal and best

interests. See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018). The absence

of a conflict necessarily presupposes knowledge of the child’s preferred

outcome, unless that child is incapable of expressing that outcome. See id.

      Here, as noted above, the trial court appointed Attorney Rose as the

guardian ad litem/legal counsel for Child. See, e.g., K.M., 53 A.3d at 781;

In re T.S., 192 A.3d at 1092-93. Attorney Rose was present at the hearing

and cross-examined the witnesses. Although Attorney Rose met with Child,

see N.T. at 61, she did not argue Child’s preferred outcome or that Child,

although six years old at the time of the hearing, was unable to express his

preferred outcome. See id. at 104-05. Additionally, Attorney Rose did not

explicitly articulate Child’s legal preferences in the appellate brief. Rather,


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Attorney Rose noted that the Child’s best interests were advanced by

terminating Father’s parental rights because Father’s actions did not

constitute performance of parental duties, but nonetheless criticized Mother

and Paternal Grandmother for their selfish behavior. See Child’s Brief at 9-

12.

      Accordingly, we are constrained to vacate the order and remand for

further proceedings.    See T.M.L.M., 184 A.3d at 589-91 (vacating and

remanding for further proceedings where the attorney admitted she did not

interview the six-year-old child to ascertain the child’s preferences); see also

In re Adoption of M.D.Q., 192 A.3d 1201, 1206 (Pa. Super. 2018) (vacating

and remanding where the record does not indicate that counsel attempted to

ascertain the children’s preferences and the record does not reflect the

children’s legal interests); cf. In re Adoption of D.M.C., 192 A.3d 1207,

1212-13 (Pa. Super. 2018) (vacating and remanding where the record was

unclear in what capacity attorney had been appointed to represent children,

including   four-and-a-half-year-old     child,   and   whether   attorney   had

ascertained children’s legal interests prior to hearing).

      On remand, we direct the orphans’ court to re-appoint legal counsel for

Child forthwith. Counsel must attempt to ascertain Child’s preferred outcome

as to Father by directly interviewing him, following any direction to the extent

possible, and advocating in a manner that comports with Child’s legal

interests. Once Child’s preferred outcome is identified, counsel shall notify


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the orphans’ court whether termination of Father’s parental rights is consistent

with Child’s legal interests. If Child’s preferred outcome is consistent with the

result of the prior termination proceedings, the orphans’ court shall re-enter

its September 11, 2018, termination order as to Father.         If the preferred

outcome is in conflict with the prior proceeding, the orphans’ court shall

conduct a new termination/goal change hearing as to Father to provide Child’s

legal counsel an opportunity to advocate on behalf of Child’s legal interests.

See T.M.L.M., 184 A.3d at 591 (ordering that orphans’ court shall conduct a

new hearing only if it serves the “substantive purpose” of providing the child

with the opportunity to advance his legal interests through new counsel).

      Order vacated without prejudice to permit the orphans’ court to re-enter

the original order if a new termination hearing is not required. If the original

order is re-entered, the orphans’ court is ordered to file an opinion that

complies with Pa.R.A.P. 1925(a)(2)(ii), including findings of fact and

conclusions of law in support of termination. The orphans’ court order does

not comply with Rule 1925(a)(2)(ii).          Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/13/2019

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