In the Int. of: S.F., Appeal of: E.T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: E.T., FATHER :
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:
:
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: No. 1136 WDA 2021
Appeal from the Order Entered September 8, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): CP-02-AP-0000068-2021
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: MAY 20, 2022
E.T. (Father) appeals from the order dated August 27, 2021, and
entered on September 8, 2021, in the Court of Common Pleas of Allegheny
County, that involuntarily terminated his parental rights to his son, S.F.
(Child), born in May of 2016, pursuant to the Adoption Act, 23 Pa.C.S.A.
§ 2511(a)(2), (5), (8), and (b).1 After careful review, we vacate and remand
for proceedings consistent with this memorandum.
Child is the youngest of three children born to Mother. Allegheny County
Children Youth and Families (CYF) became involved with this family on July
23, 2015, prior to Child’s birth, due to concerns about Mother’s substance
* Retired Senior Judge assigned to the Superior Court.
1By the same order, the orphans’ court terminated the parental rights of S.F.
(Mother), Child’s natural mother. We dispose of Mother’s appeal in a separate
memorandum.
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abuse and intimate partner violence between Mother and her paramour. N.T.,
8/27/21, at 69. CYF provided services for the family. On November 8, 2015,
Child’s two older half-siblings, J.F. and F.F., were removed from Mother’s care
due to a violent incident that occurred while they were present in Mother’s
home. Id. The court placed Child in the protective custody of CYF when he
was born several months later. Id. at 71. The orphans’ court adjudicated
Child dependent on July 20, 2016. On June 25, 2018, Child’s dependency,
and that of his half-siblings, was discharged as a result of Mother’s cooperation
with CYF and her completion of her FSP goals. Id. at 72. Child’s father was
unknown throughout most of his dependency case. Father was identified
shortly before Child was returned to Mother. At that time, Mother indicated
to CYF that Father visited with Child “sporadically,” but Father was not in
contact with CYF. Id. at 94.
Reunification between Mother and Child was short-lived. In October of
2018, CYF received another referral for this family, and the case was re-
opened in December of 2018, due to Mother’s neglect of her own mental
health. Mother also informed CYF that she was experiencing severe
depression. N.T., 8/27/21, at 72-73. In addition, CYF was concerned about
Mother’s general neglect and medical neglect of the children. Id.
On September 11, 2019, Child was adjudicated dependent a second
time because Mother was not meeting Child’s needs, and Father did not
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respond to CYF’s attempts to contact him. N.T., 8/27/21, at 75, 77. Child
was placed in foster care the following day. Id.
Father presented to CYF in October of 2019. N.T., 8/27/21, at 77.
According to Justine Walz, a CYF caseworker, CYF created a family service
plan (FSP) for Father when the case re-opened. N.T., 8/27/21, at 78. The
following permanency objectives existed for Father throughout Child’s
dependency: address drug and alcohol issues; provide safe and stable
housing; improve parenting skills; and participate in visitation with Child. Id.
at 96. Ms. Walz stated that Father did not request to have Child placed with
him. Rather, Father indicated that he wanted Mother to regain custody and,
if she could not, then he would address the goals that CYF and the court set
for him. Id. at 98. As of October of 2020, Father did not complete his
court-ordered goals such that Child could be reunified with him. Id. at 142.
On March 31, 2021, CYF filed a petition to terminate involuntarily
Father’s parental rights to Child pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5),
(8), and (b). A hearing occurred on August 27, 2021, which Father attended,
was represented by counsel, and testified on his own behalf. In addition,
Child, then five years old, was represented by Renee Colbert, Esquire, as Child
Advocate.
CYF presented the testimony of its caseworker, Justine Walz; Rachel
Wagner, program manager in the intake department at POWER, a substance
abuse outpatient treatment facility; and Sarah Ulish, placement services
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manager at Auberle, a non-profit social services agency. CYF entered the
following exhibits relating to Father into evidence, which the orphans’ court
admitted: Father’s POWER referral; the Family Service Plans (FSPs); the
orphans’ court orders; Father’s criminal record; and evaluations by the
court-appointed evaluator, Dr. Neil Rosenblum.
By order dated August 27, 2021, and entered on September 8, 2021,
the orphans’ court terminated Father’s parental rights involuntarily pursuant
to 23 Pa.C.S.A. § 2511(a)(2), (5), (8) and (b). On September 27, 2021,
Father filed a notice of appeal along with a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On
November 29, 2021, the orphans’ court filed its Rule 1925(a) opinion.
On appeal, Father presents two issues for our review:
1. Did the [orphans’] court abuse its discretion and/or err as a
matter of law in granting the petition to involuntarily terminate
Father's parental rights pursuant to 23 Pa.C.S.[A.] § 2511
(a)(2)[,] (5) and (8)?
2. Did the [orphans’] court abuse its discretion and/or err as a
matter of law in concluding that CYF met its burden of proving
by clear and convincing evidence that termination of Father's
parental rights would best serve the needs and welfare of the
child pursuant to 23 Pa.C.S.[A.] § 2511(b)?
Father’s Brief at 6.
We review this appeal according to an abuse of discretion standard, as
follows.
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
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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) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Sections 2511(a)(2), (5), (8) and (b) 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:
...
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary
for his physical or mental well-being and the conditions and
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causes of the incapacity, abuse, neglect or refusal cannot
or will not be remedied by the parent.
...
(5) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency for a period of at least six months, the conditions
which led to the removal or placement of the child continue
to exist, the parent cannot or will not remedy those
conditions within a reasonable period of time, the services
or assistance reasonably available to the parent are not
likely to remedy the conditions which led to the removal or
placement of the child within a reasonable period of time
and termination of the parental rights would best serve
the needs and welfare of the child.
...
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
...
(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.
23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b); see also In re B.L.W., 843
A.2d 380, 384 (Pa. Super. 2004) (en banc) (stating that we need only agree
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with the trial court as to any one subsection of Section 2511(a), as well as
Section 2511(b), in order to affirm).
Before reaching the merits of Father’s issues on appeal, we must first
address sua sponte whether, pursuant to 23 Pa.C.S.A. § 2313(a),2 the
orphans’ court appointed legal counsel to represent Child during the contested
involuntary termination proceeding. In re Adoption of K.M.G., 240 A.3d
1218, 1235 (Pa. 2020). Our Supreme Court has interpreted Section 2313(a)
“as requiring ‘that the common pleas court appoint an attorney to represent
the child’s legal interest, i.e. the child’s preferred outcome.’” Id. (citing In re
T.S., 192 A.3d 1080, 1082 (Pa. 2018)). The failure to appoint a “‘separate
attorney to represent the child’s legal interests constitutes structural error,
meaning it is not subject to harmless error analysis.’” Id. (citing In re T.S.,
supra; In re L.B.M., 161 A.3d 172, 183 (Pa. 2017)).
The Court reiterated that “a single attorney cannot represent a child’s
best interest and legal interest if those interests conflict.” K.M.G., 240 A.3d
2 This subsection provides as follows:
(a) Child.--The court shall appoint counsel to represent the child in an
involuntary termination proceeding when the proceeding is being
contested by one or both of the parents. The court may appoint
counsel or a guardian ad litem to represent any child who has not
reached the age of 18 years and is subject to any other proceeding
under this part whenever it is in the best interests of the child. No
attorney or law firm shall represent both the child and the adopting
parent or parents.
23 Pa.C.S.A. § 2313(a).
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at 1236 (citing In re T.S., supra). As such, the Court concluded, “the
orphans’ court must determine whether counsel can represent the dual
interests before appointing an individual to serve as [Guardian ad
litem]/Counsel for a child.” Id. (emphasis added). In addition, the Court held
that “where an orphans’ court has appointed a [Guardian ad litem]/Counsel
to represent both the child’s best interest and legal interest, appellate courts
should review sua sponte whether the orphans’ court made a determination
that those interests did not conflict.” Id. at 1235.
Instantly, a pre-trial order dated and filed on April 23, 2021, at Child’s
orphans’ court docket number, provided, “Office of Conflict Counsel is
appointed as counsel for the child.” Pre-trial Order, 4/23/21, at ¶ 2. On May
12, 2021, Attorney Colbert filed a praecipe for appearance as Child Advocate
at the orphans’ court docket number. Our review of the certified record
reveals no other order of appointment for representation of Child and no other
praecipe for appearance filed at the orphans’ court docket number. Indeed,
Attorney Colbert served as Child’s sole attorney during the termination
proceeding, and she advocated for the termination of Father’s parental rights
as being in Child’s best interest.3 N.T., 8/27/21, at 4, 221.
We are unable to determine from the certified record the manner in
which the orphans’ court appointed Attorney Colbert. The order of
3 In this appeal, Attorney Colbert filed an appellee brief in support of the
involuntary termination order.
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appointment refers to the Office of Conflict Counsel, but the record does not
indicate if Attorney Colbert is associated with that office. Furthermore, the
order uses the term “counsel,” but does not specify if it meant legal counsel,
as in an attorney representing Child’s preferred outcome. Moreover, the only
indication of Attorney Colbert’s role is her argument supporting Child’s best
interest, suggesting that she was serving as his guardian ad litem. Given that
Attorney Colbert was Child’s sole attorney during the involuntary termination
proceeding, we have reviewed the certified record to confirm that the orphans’
court determined prior to the proceeding that Child’s best interest and legal
interest did not conflict. Nothing in the record indicates whether the orphans’
court fulfilled its duty in this regard under Section 2313(a), as construed by
our Supreme Court in K.M.G., 240 A.3d at 1236. Therefore, we are unable
to fulfill our duty to verify sua sponte that the orphans’ court determined that
Attorney Colbert could represent S.F.’s dual interests without conflict. Id.
Accordingly, we are constrained to vacate the involuntary termination
decree and remand for further proceedings. See Interest of A.J.R.O., 270
A.3d 563 (Pa. Super. 2022). On remand, we direct the orphans’ court to fulfill
its Section 2313(a) duty as articulated in K.M.G., supra, and determine
whether Attorney Colbert may represent both the best interest and legal
interest of Child. If the orphans’ court determines that no conflict exists
between Child’s dual interests, then the court shall re-enter the termination
order as to Father. If the orphans’ court determines that there is a conflict
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between Child’s best interest and legal interest, then the court shall appoint
separate legal counsel and conduct a new involuntary termination hearing as
to Father to provide legal counsel an opportunity to advocate on behalf of
Child’s legal interests pursuant to K.M.G., 240 A.3d at 1235.
Order vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/20/2022
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