In Re: Adoption of N.A.N., minor, Appeal of: E.N. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF N.A.N., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: E.N., NATURAL FATHER :
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: No. 1774 WDA 2017
Appeal from the Order October 27, 2017
In the Court of Common Pleas of Washington County Orphans' Court at
No(s): No. 63-17-0108
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JUNE 25, 2018
E.N. (“Father”) appeals the order entered on October 27, 2017, that
granted the petition1 filed by S.D. (“Mother”) seeking to involuntarily
terminate Father’s parental rights to their female child, N.N. (“Child”) (born in
June of 2007), in order for Mother’s husband, R.D. (“Stepfather”) to adopt
Child. We vacate and remand.
The trial court set forth the factual background of this matter, as follows:
[Child] was born June [ ], 2007 to Mother and Father. Initially,
N.N. lived with Mother and Father until Father was arrested and
incarcerated in October 2007. During Father’s incarceration, and
prior to his sentencing in 2010, Mother would take N.N. to visit
Father a couple of times each month. Father has not seen the
[Child] since August 2008, and last spoke with her[] on November
6, 2012.
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1 Pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1) and (b).
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In February 2010, Father was found guilty of two (2) counts of
criminal homicide and sentenced to two (2) consecutive life
sentences, each without the possibility of parole. Throughout his
time in prison, Father sent N.N. no more than five (5) letters each
year, and it has been years since he last sent N.N. any gifts or
presents. While in prison, Father earns approximately forty-seven
dollars ($47.00) each month for teaching others how to build
houses. Father has never provided any of this money as child
support for N.N.
[…] N.N. expressed that her wish is to be adopted by [Stepfather].
Mother has been married to [Stepfather] since September 18,
2015. [Stepfather] has resided with Mother and N.N. since 2009,
and he views N.N. as his daughter. [Stepfather] has supported
N.N. by providing her with a home, clothing, love and guidance.
[Stepfather] has also bonded with N.N. by participating with her
in other activities to include sports and going to the movies.
Trial Court Opinion, 10/27/17, at 1-2.
On January 31, 2017, Mother filed the petition to terminate the parental
rights of Father to Child, so that Stepfather could adopt Child. On February
22, 2017, the trial court received and docketed a hand-written letter from
Father stating that, although incarcerated, he wished to participate in the
hearing on the termination petition scheduled for April 3, 2017.
On April 3, 2017, the trial court held a hearing on the termination
petition. Father was present at the hearing via videoconference, but
proceeded unrepresented by counsel. Mother and Stepfather were present
and represented by legal counsel. Mother presented the testimony of
Stepfather and her mother, D.H., Child’s maternal grandmother. Mother also
testified on her own behalf. Father presented the testimony of his mother,
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L.N., the Child’s paternal grandmother. He also testified on his own behalf.
Child was not present.
On May 30, 2017, the trial court appointed counsel, Erick Rigby, Esquire
to represent Child. On September 7, 2017, the trial court held a brief hearing,
but did not hear any additional testimony or admit any additional documentary
evidence. On September 11, 2017, Attorney Rigby filed a position statement
on behalf of Child. In the position statement, Attorney Rigby stated that he
was representing both the legal interests and best interests of Child and
recommended terminating Father’s parental rights.2 On October 27, 2017,
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2 Pursuant to In Re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017), the
appointment of legal counsel to represent a child in a contested termination
proceeding is mandatory under 23 Pa.C.S.A. § 2313(a). In L.B.M., our
Supreme Court looked to the Rules of Juvenile Court Procedure to define the
difference between a child’s best interests (which are advocated by a guardian
ad litem) and a child’s legal interests (which are advocated by legal counsel).
“Legal interests” denotes that an attorney is to express the child’s
wishes to the court regardless of whether the attorney agrees with
the child’s recommendation. “Best interests” denotes that a
guardian ad litem is to express what the guardian ad litem
believes is best for the child’s care, protection, safety, and
wholesome physical and mental development regardless of
whether the child agrees.
L.B.M., 161 A.3d at 174, n.2 quoting Pa.R.J.C.P. 1154 cmt.
In the position statement, Attorney Rigby stated:
[C]hild indicated to counsel that she wishes to have her parental
connection with her biological father severed. She stated that she
would like her step-father to adopt her, and that it was her request
that these proceedings be initiated.
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the trial court entered the order involuntarily terminating Father’s parental
rights to Child pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b).
On November 8, 2017, Father wrote a letter to the trial court requesting
the appointment of counsel to represent him on appeal, alleging he was
indigent. On November 14, 2017, the trial court appointed James R. Jeffries,
Esquire to represent Father. On November 27, 2017, Attorney Jeffries timely
filed a notice of appeal on behalf of Father. On December 18, 2017, Attorney
Jeffries filed a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b) on behalf of Father.3
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Position Statement, 9/11/17 (unpaginated) at *3.
Attorney Rigby further opined:
It is [my] opinion [] that the termination of [F]ather’s rights is in
the best of interest of [] [C]hild. Father has not performed his
parental duties and due to his life sentence does not have the
capacity to provide for his biological daughter. Step-father has
taken a parental role regarding [] [C]hild, and it is in her best
interest that she be made free for adoption by [S]tep-father.
Id.
Hence, there was no conflict between Child’s legal and best interests. As such,
the trial court, in this case, was not required to appoint legal counsel and a
separate guardian ad litem for Child. See In re D.L.B., 166 A.3d 322, 329
(Pa. Super. 2017) (declining to remand for appointment of additional counsel
for a child represented by a guardian ad litem, a practicing attorney, because
the child’s best and legal interests were not in conflict).
3 Although Father failed to accompany his timely notice of appeal with a
concise statement, as required by Pa.R.A.P. 1925(a)(2)(i) and (b), the trial
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In his brief on appeal, Father raises three issues:
I. Whether it is reversible error for an incarcerated individual
not to be appointed legal counsel in a termination of
parental rights hearing?
II. Whether due process is violated when the petition for
termination of parental rights does not contain the required
Act 101 notice?
III. Whether it is a fatal defect when the petition raises the
incorrect statute as a basis of relief?
Father’s Brief, at 7.
In his first issue presented, Father contends he lacked proper notice of
his right to have counsel appointed to represent him in the termination
proceeding in violation of his constitutional guarantee to due process of law.
See Father’s Brief, at 10-14.
In its opinion, the trial court states that, “Father was asked whether he
wanted to be represented by a lawyer and stated that he did not.” Trial Court
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court did not direct him to file one. On December 20, 2017, this Court ordered
Father to file his concise statement by January 2, 2018. However, because
Father filed a concise statement with the trial court on December 18, 2017,
he was in compliance with this Court’s order. As no party complains of
prejudice from this late filing, we will review the appeal. See In re K.T.E.L.,
983 A.2d 745 (Pa. Super. 2009) (finding that the appellant’s failure to
simultaneously file a Rule 1925(b) concise statement did not result in waiver
of all issues for appeal where the appellant later filed the statement, and there
was no allegation of prejudice from the late filing); cf. J.P. v. S.P., 991 A.2d
904 (Pa. Super. 2010) (finding appellant waived appellate issues by failing to
comply with the trial court’s order to file a Rule 1925(b) statement within 21
days); cf. J.M.R. v. J.M. 1 A.3d 902 (Pa. Super. 2010) (finding appellant
waived appellate issues by failing to comply with this Court’s order to file a
Rule 1925(b) statement).
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Opinion, 12/18/17, at 1, n.1. However, for the reasons that follow, we find
that Father’s constitutional guarantee to due process was not properly
protected, because he was not given proper notice that he was entitled to
court appointed counsel upon petition and a finding of indigence.
This Court has previously determined:
The Adoption Act controls termination of parental rights
proceedings. See generally 23 Pa.C.S.A. §§ 2511-2513. It
provides that a 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.” Id. § 2313(a.1); see
also In re J.T., 983 A.2d 771, 774 (Pa. Super. 2009) (stating,
“an indigent parent in a termination of parental rights case has a
constitutional right to counsel … [and t]he right to counsel in
parental termination cases is the right to effective assistance of
counsel even though the case is civil in nature[ ]”) (citations
omitted). An indigent parent in termination proceedings is
likewise entitled to be advised of that right. This Court has held
that when a party was denied [the] right to counsel—or failed to
properly waive that right—this Court is required to raise this error
sua sponte and remand for the [ ] court to correct that mistake.
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In In re J.N.F., 887 A.2d 775 (Pa. Super. 2005), this Court held,
consistent with the text of Section 2313(a.1), that the parent must
request a court-appointed attorney once notified of the
requirement to do so. Id. at 780. In that case, this Court
concluded that the father, who was incarcerated, was provided
with adequate notice[4] that he was required to affirmatively
request an attorney.
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4 In In re J.N.F., the notice attached to the termination petition provided as
follows:
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In re X.J., 105 A.3d 1, 4–5 (Pa. Super. 2014).
Moreover, recently, in In re Adoption of C.A.S., 166 A.3d 353 (Pa.
Super. 2017), this Court stated:
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 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.
In In re Adoption of C.A.S., we found that the father in the termination
proceedings had been served with at least five documents providing
inconsistent notice of how to seek court-appointed counsel and/or legal
assistance. We ultimately concluded:
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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.
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Because it appear[ed] that [the father] may have been misled by
these conflicting and inaccurate instructions, we [did not] find that
he waived his right to counsel.
Accordingly, we conclude[d] that the orphans’ court erred by
failing to continue to the termination proceedings so that [the
father] could petition for court-appointed counsel. We therefore
vacate[d] the order terminating [the father’s] parental rights, and
we remand[ed] [the] matter to the trial court for a new
termination hearing, prior to which the court [was ordered to]
determine whether [the father] continue[d] to qualify for court-
appointed counsel, and [to] appoint counsel for [the father], if
necessary.
In re Adoption of C.A.S., 166 A.3d at 357.
In the current case, the petition for the termination of Father’s parental
rights did not include any notice to Father regarding his right to counsel. Upon
further review of the certified record, there is no indication that notice to
Father was filed separately in the record. Moreover, the notes of testimony
from the termination hearing reflect the following exchange occurred between
the trial court and Father at the commencement of the termination hearing:
THE COURT: [Father], can you hear me?
[FATHER]: Yes, I can, Your Honor.
THE COURT: Great. I received a letter from you saying that
although you are incarcerated, you do wish to participate in this
hearing; is that correct?
[FATHER]: Yes, sir, it is.
[THE COURT]: All right. I see that a petition for involuntary
termination of parental rights was filed [] on behalf of the
biological mother. The petition was filed on January 31, 2017.
[Father], did you receive a copy of that petition?
[FATHER]: Yes, I did, Your Honor.
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THE COURT: I do not see a response to the allegations set forth
in the petition. Is it your intention to file a response?
[FATHER]: I didn’t know I was supposed to, Your Honor.
THE COURT: I see. You have read the petition?
[FATHER]: Yes, I have, Your Honor.
THE COURT: Do you understand the petition?
[FATHER]: Yes, I do.
THE COURT: All right. [Father], do you have a lawyer?
[FATHER]: No, I do not.
THE COURT: Do you wish to have a lawyer?
[FATHER]: No, I do not.
THE COURT: And why is that, sir?
[FATHER]: Because I feel after – that I say what I need to say,
that that’s all I can do.
THE COURT: I see. All right. We’re going to proceed.
N.T., 4/3/17, at 2-3.
Upon our careful review of the record in the present appeal, we find that
the trial court erred when it determined that Father had waived his right to
appointed counsel in this matter. There is nothing in the record to suggest
that Father received notice of his right to petition for court-appointed counsel.
When the trial court conducted the subsequent colloquy of Father, it did not
apprise Father of his right to counsel. Without proper notice of his
constitutional right to the appointment of counsel in a contested termination
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proceeding, Father simply could not waive that right. Based on the foregoing,
we vacate the decree terminating Father’s parental rights. 5 Accordingly, we
are constrained to remand the matter to the trial court for a new termination
hearing, prior to which the trial court shall advise Father of his rights to be
represented by counsel and to petition for court-appointed counsel, determine
whether Father qualifies for court-appointed counsel, and appoint counsel for
Father, if necessary. See C.A.S., 166 A.3d at 357.
Order vacated and remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/2018
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5 We note that Father does not develop his second or third issues in his
appellate brief, but because Father is entitled to relief on his first issue, we
need not reach the other issues.
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