In Re: Adoption of: C.K., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: C.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: E.G., MOTHER :
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: No. 208 MDA 2018
Appeal from the Decree Entered December 29, 2017
In the Court of Common Pleas of Northumberland County Orphans' Court
at No(s): Adoptee # 9 of 2015
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 19, 2018
E.G. (“Mother”) appeals from the orphans’ court decree entered
December 29, 2017, that granted the petition of the Northumberland County
Children and Youth Social Service Agency (“CYS”), and involuntarily
terminated her parental rights to her minor son, C.K.1 We vacate and remand
for further proceedings consistent with this memorandum.
CYS became involved with C.K. shortly after his birth in October 2012.
At the hospital, Mother’s care for C.K. raised concerns. N.T., 7/6/16, at 6.
When hospital staff attempted to make recommendations regarding C.K.’s
care, Mother became violent, throwing items around her room and at staff.
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1 In separate decrees, the orphans’ court terminated the parental rights of
J.K., the legal father, and M.C., the biological father. Neither man appealed
the respective decrees or participated in this appeal.
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* Retired Senior Judge assigned to the Superior Court.
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Id. at 6-7. CYS subsequently offered Mother a parenting service, a referral
for early head start, and a recommendation for mental health and medication
management services. Id. at 7. Mother initially cooperated with CYS, but
subsequently became uncooperative, moving between Northumberland
County and Dauphin County to avoid CYS involvement. Id. at 8-9.
CYS then received a referral alleging Mother was drinking, using
marijuana, and “popping pills.” Id. at 10-11. Sarah Austin, a CYS
caseworker, went to Mother’s home to investigate, and Mother slammed the
door in her face. Id. at 11. While Ms. Austin waited outside, the police arrived
to investigate a domestic dispute between Mother, Mother’s brother, and her
brother’s girlfriend. Id. After the police arrived, Ms. Austin went into the
home and attempted to drug test Mother, who would not take the drug test,
but informed Ms. Austin she would test positive for morphine. Id.
Ms. Austin observed the home was extremely cluttered, with safety
hazards all over the floor. Id. Ms. Austin offered Mother a safety plan if she
could identify someone who would be appropriate to supervise Mother’s
contact with C.K. Id. at 12. Mother refused to identify anyone because
Mother did not want C.K. removed from her custody. Id. at 12-13. CYS
obtained an order for temporary custody. Id. at 13. Mother became violent,
“punching out” the living room window and making suicidal threats. Id.
Following the incident, Sunbury Community Hospital admitted Mother for
twenty days as a psychiatric patient. Id. at 14. Subsequently, the juvenile
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court adjudicated C.K. dependent on December 18, 2013. N.T., 11/12/15,
Exhibit 1.
On March 17, 2015, CYS filed a petition for involuntary termination of
parental rights, seeking to terminate Mother’s parental rights to C.K. The
orphans’ court conducted hearings on the petition on November 12, 2015, July
6, 2016, August 31, 2016, and July 19, 2017.2 Rachel Wiest-Benner, Esquire,
served as C.K.’s guardian ad litem, and appeared at each hearing. In response
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2 Plainly, the two–and-one-half-year timeline presented in this case is
unacceptable insofar as it flouts our Supreme Court’s mandate that courts
resolve children’s fast track cases expeditiously. See In re T.S.M., 71 A.3d
251, 256 n.12 (Pa. 2013) (“An eight month delay between the filing of a
termination petition and a hearing thereon, without some explanation is
inconsistent with the best practices for dependent children in need of
permanency.”).
While the most recent delays were due to the necessity of a court-ordered
competency evaluation and Mother’s decision to abscond from the termination
proceeding, those interruptions do not explain the remaining delays that
plagued this case throughout. Indeed, our review of the certified record
reveals that the orphans’ court granted the parties five separate requests for
continuances that delayed the proceedings by 306 days. The case was
delayed an additional ninety days when the trial court administrator
reassigned it, without explanation, to a different orphans’ court judge, who
subsequently recused and returned the case to the original judge. Hence,
whether through administrative inefficiencies or the orphans’ court’s liberal
grant of continuances, resolution was postponed 396 days.
Furthermore, in addition to the foregoing interruptions, the certified record
also discloses an unexplained gap of five and one-half months between the
penultimate hearing on August 31, 2016, and the ensuing order dated
February 14, 2017 that scheduled the final hearing for March 26, 2017. Thus,
even ignoring all of the delay attributable to the various continuances,
Mother’s disappearance, and the competency evaluation, the case was
needlessly delayed 168 days without explanation. This scenario is intolerable.
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to our High Court’s then-new holding in In re Adoption of L.B.M., 161 A.3d
172, 183 (Pa. 2017), on April 10, 2017, the orphans’ court appointed Brian
Ulmer, Esquire, as legal counsel for C.K. Attorney Ulmer only appeared at the
July 19, 2017 hearing. On December 29, 2017, the orphans’ court entered a
decree terminating Mother’s parental rights to C.K.3 Mother timely filed a
notice of appeal, along with a concise statement of errors complained of on
appeal.
Prior to addressing the merits of Mother’s appeal, we must first address
sua sponte the representation provided by C.K.’s legal counsel. Pursuant to
23 Pa.C.S. § 2313(a), a child who is the subject of a contested involuntary
termination proceeding has a statutory right to counsel who discerns and
advocates for child’s legal interests, which our Supreme Court has defined as
a child’s preferred outcome. In re T.S., __ A.3d __, 2018 WL 4001825 at *
1 (Pa. 2018) (citing In re Adoption of L.B.M., supra). Because the right to
counsel belongs to the child who is unable to address a deprivation of his or
her right to counsel on his or her own behalf, we must address this issue sua
sponte. See id. at *5 (holding that the child’s statutory right to counsel is
non-waivable); In re K.J.H., 180 A.3d 411 (Pa. Super. 2018) (holding that
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3 The orphans’ court considered the dependency record in its determination.
Only limited portions of the dependency record are contained in the certified
record.
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this Court must determine sua sponte whether 23 Pa.C.S. § 2313(a) was
satisfied).
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, 587-91 (Pa.Super. 2018).
Counsel’s duty to represent a child does not stop at the conclusion of the
termination of parental rights hearing. Id. at 590; see also In re M.T., 607
A.2d 271, 276 (Pa.Super. 1992) (observing that child’s counsel abdicated his
legal responsibilities to his client because counsel, inter alia, failed to file a
brief, indicate that he joined another party’s brief, or otherwise notify this
Court of his client’s position).
Instantly, the orphans’ court did not appoint Attorney Ulmer until April
of 2017. Accordingly, C.K. had the benefit of § 2313(a) counsel for only one
of the four proceedings in the contested termination case, the July 19, 2017
hearing. However, Mother did not appear for the July 19, 2017 hearing, and
the testimony primarily related to determining whether Mother had notice of
the hearing, as well as testimony regarding a competency evaluation
performed on Mother. Attorney Ulmer engaged in limited cross-examination
of some of the witnesses. He did not indicate C.K.’s legal preferences at the
hearing, and there is nothing in the record to demonstrate that he interviewed
C.K., who was then four and one-half years old, to ascertain his preferred
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outcome.4 Compounding these issues, Attorney Ulmer neglected to enter his
appearance with this Court, file a brief, or join the brief of another party.5
Further, nothing in the record clearly indicates C.K.’s preference. There was
testimony that C.K. reacted negatively to Mother’s presence on occasions, but
a bonding evaluation undertaken in March of 2015 revealed that C.K.
interacted with Mother without fear or apprehension and demonstrated
affection for her. N.T., 11/12/15, at 147, 195; N.T., 7/6/16, at 94.
Accordingly, in light of the fact the orphans’ court failed to ensure that
C.K. received the legal representation to which he was entitled pursuant to §
2313(a), and mindful that counsel’s obligation to C.K. extended to this appeal,
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4 At the conclusion of the July 19, 2017 hearing, the orphans’ court held the
record open to determine why Mother did not appear. By order dated
September 27, 2017, the orphans’ court closed the record, finding Mother’s
proffered excuse, that she was physically unable to travel to the courthouse
as a result of being “frozen” by a “severe anxiety attack,” was insufficient to
continue the hearing.
5 While there is no indication in the record that Attorney Ulmer withdrew his
appearance following the July 19, 2017 hearing, there is also no evidence that
he was served with the decree terminating Mother’s parental rights, Mother’s
notice of appeal, concise statement of errors complained of on appeal, or any
subsequent document involving Mother’s appeal. To complicate matters even
further, the certified record contains a June 29, 2017 order that was entered
by a different orphans’ court judge after that judge had recused himself from
the proceeding. The order purported to appoint Ann Targonski, Esquire as
C.K.’s legal counsel; however, it did not mention Attorney Ulmer or recognize
the fact that the child’s legal interest were already represented, as
subsequently confirmed by Attorney Ulmer’s participation in the July 2017
hearing. In addition, the June order was not served on any party, and
Attorney Targonski did not enter her appearance, attend any hearings, or
represent the child in any capacity.
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we vacate the decree in this matter, and remand for further proceedings. See
In re Adoption of T.M.L.M., supra at 587-91 (vacating and remanding for
further proceedings where the attorney admitted she did not interview the
nearly six-year-old child to ascertain the child’s preferences); see also In re
Adoption of D.M.C., __ A.3d __, 2018 WL 3341686 (Pa.Super. July 9, 2018)
(vacating and remanding where the record was unclear in what capacity the
attorney had been appointed to represent the children and whether the
attorney had ascertained children’s legal interests prior to the hearing); see
also In re Adoption of M.D.Q., __ A.3d __, 2018 WL 3322744 (Pa.Super.
filed July 6, 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).
On remand, we direct the orphans’ court to determine Attorney Ulmer’s
status and, if necessary, appoint substitute legal counsel for C.K. forthwith.
Counsel must attempt to ascertain C.K.’s preferred outcome as to Mother by
directly interviewing C.K., following his direction to the extent possible, and
advocating in a manner that comports with C.K.’s legal interests. Once C.K.’s
preferred outcome is identified, counsel shall notify the orphans’ court whether
termination of Mother’s parental rights is consistent with C.K.’s legal interests.
If C.K.’s preferred outcome is consistent with the result of the prior
termination proceedings, or if a preference cannot be ascertained, the
orphans’ court shall re-enter its December 29, 2017 decree. If the preferred
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outcome is in conflict with the prior proceeding, the orphans’ court shall
conduct a new termination hearing as to Mother to provide C.K.’s legal counsel
an opportunity to advocate on behalf of C.K.’s legal interests. See T.M.L.M.,
supra at 591 (ordering that the trial 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).
Decree vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/19/2018
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