In Re: Adoption of: K.P.F., Appeal of: K.F. & D.F. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: ADOPTION OF: K.P.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: K.F. AND D.F. :
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:
:
:
: No. 310 WDA 2023
Appeal from the Order Entered February 13, 2023
In the Court of Common Pleas of Blair County Orphans' Court at No(s):
No. 2021 Adoption 32
IN RE: ADOPTION OF L.T.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.F. AND D. F. :
:
:
:
:
: No. 311 WDA 2023
Appeal from the Order Entered February 13, 2023
In the Court of Common Pleas of Blair County Orphans' Court at No(s):
No. 2021 Adoption 32A
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: OCTOBER 23, 2023
Appellants, K.F. and D.F., appeal at docket number 310 WDA 2023 from
the orphans’ court’s order denying their petition for involuntary termination of
the parental rights of Appellee, A.B. (“Mother”), to minor, K.P.F., born in
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September of 2014.1 In addition, Appellants appeal at docket number 311
WDA 2023 from the orphans’ court’s order denying their petition for
involuntary termination of the parental rights of Mother to minor, L.T.B., born
in August of 2010.2, 3 Because it is unclear whether Children were appointed
appropriate counsel to represent their legal interests during the involuntary
termination proceedings, we are constrained to vacate the orphans’ court
orders and remand for further proceedings.
We need not delve deeply into the underlying facts given our disposition.
Instead, we focus our attention on the procedural history of this matter, which
the orphans’ court summarized as follows:
The interests of the [C]hildren were initially addressed by Blair
County Children, Youth and Families. An application for
emergency protective custody was filed on behalf of [L.T.B.] on
September 20, 2019. The petition alleged abuse and/or neglect[,]
and that the child was without proper care or control. An
application for emergency protective custody was filed on behalf
of [K.P.F.] on September 20, 2019. The petition alleged abuse
and/or neglect[,] and that the child was without proper care or
control. On September 20, 2019, shelter[]care applications were
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1 As discussed infra, the orphans’ court also denied Appellants’ petition for
involuntary termination of the parental rights to K.P.F. of Appellee, N.F.
(“K.P.F.’s Father”). K.P.F.’s Father had agreed to consent to the
relinquishment of his parental rights to K.P.F., provided that Mother’s rights
were terminated. N.T., 10/18/22, at 2-3. By way of background, Appellant,
K.F., is K.P.F.’s Father’s father, i.e., K.P.F.’s grandfather. Appellant, D.F., is
K.F.’s wife.
2 The biological father of L.T.B. is unknown. Orphans’ Court Opinion (“OCO”),
2/13/23, at 1. However, K.P.F.’s Father “was in the role of father for” L.T.B.
Id. at 6. See also id. at 17 (noting that K.P.F.’s Father “has been the father
role to [L.T.B.] since [L.T.B.] was four years old”).
3 We collectively refer to L.T.B. and K.P.F. herein as “Children.”
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filed on behalf of the named [C]hildren. The applications stated
that the [C]hildren were in the protective custody[,] as of
September 18, 2019[,] of [Appellants] at [Appellants’ home
address]. The shelter[]care order docket number CP7-DP-00017-
2019 provided that sufficient evidence was presented to prove
that continuance or return of the [C]hildren to the home of
[Mother], [K.P.F’s Father], and[/]or maternal grandmother, [M.B.
(“Maternal Grandmother”),] was not in the best interest[s] of the
[C]hildren.
By correspondence dated September 9, 2019, counsel for
[Appellants] communicated with Blair County Children, Youth and
Families and requested the placement of the subject [C]hildren
with them in their home. A Permanency Review Order and
Permanency Review Plan was entered on October 23, 2019[,] for
the subject minor [C]hildren which provided that:
Reasonable efforts have been made by the county children
and youth services agency to finalize the [C]hildren’s
permanency plan in that the goal of return home has been
ruled out, and [Children] have been placed with [Appellants]
who are permanent legal custodians (relative) for the
[C]hildren. Services have been offered to the parents,
grandparents, and the children. The parties have agreed to
a goal of permanent legal custodianship (relative) and a
custody order is being entered consistent with the
agreement of the parties.
Orders for termination of court supervision were entered on
October 23, 2019, which provided that [C]hildren had been placed
in the custody of a permanent legal custodian. The [C]hildren had
been placed in the physical and legal custody of a fit and willing
relative[,] and services from the county agency were no longer
needed. By Order of Court dated October 23, 2019, physical and
legal custody of the [C]hildren … were vested in [Appellants].
[Appellants] were identified as the paternal grandparents of
[K.P.F]. The father of [L.T.B.] was reported as unknown. The
custody order further provided that [Mother] was permitted to
have fully supervised visits with [Children] as mutually arranged
with [Appellants]. The periods of visitation were to occur in
[Appellants’] home or another location approved by [Appellants].
[K.P.F.’s Father] was permitted to have fully supervised visits as
mutually arranged with [Appellants]. The periods of visitation
were to occur in [Appellants’] home or another location approved
by [Appellants].
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The Petitions for Involuntary Termination of Parental Rights in the
above matters were filed [by Appellants] on November 18, 2021.
A Consent to Accept Custody of [Children] was filed by [K.F.] on
October 26, 2021. A Consent to Accept Custody of [Children] was
filed by [D.F.] on October 26, 2021. On November 3, 2021,
Maryann Joyce Bistline, Esquire was appointed as counsel for
[Children].[4] A Report of Intention to Adopt was filed on behalf
of [Appellants] on November 18, 2021. A preplacement
investigation was conducted in connection with the permanency
plan placement of the minor [C]hildren through Blair County
Children and Youth docketed at CP7-DP-0016-2019. The matter
was scheduled for a hearing on February 2, 2022[,] and
subsequently continued on April 4, 2022[,] followed by a
continuance to May 16, 2022.
By Order of Court dated July 5, 2022, Mark. S. Zearfaus,
Esquire[,] was appointed to represent [K.P.F.’s Father]. Traci L.
Naugle, Esquire[,] was appointed to represent [Mother]. The
hearing on the Petition for Involuntary Termination of Parental
Rights was scheduled for August 9, 2022. The matter was
continued to October 6, 2022[,] and subsequently rescheduled to
October 18, 2022.
A hearing on the Petition for Termination of Parental Rights was
held on October 18, 2022. [K.F.] was subject to direct and cross
examination. [D.F.] was subject to direct and cross examination.
The [C]hildren were interviewed on December 14, 2022. The
second day of the hearing was held on December 22, 2022.
[Mother] was subject to direct and cross examination. [Maternal
Grandmother] was subject t[o] direct and cross examination.
[K.P.F.’s Father] was subject to direct examination. The third day
of the hearing was held February 8, 2023. [K.P.F.’s Father] was
subject to cross examination. [D.F.] was subject to continued
direct and cross examination.
OCO at 1-6 (internal citations omitted).
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4 There is no entry of a November 3, 2021 order on either orphans’ court
docket. However, as will be discussed infra, the orphans’ court entered orders
on January 18, 2022, in which it appointed Attorney Bistline as guardian ad
litem for Children.
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As mentioned supra, on February 13, 2023, the orphans’ court entered
an opinion and order at each orphans’ court’s docket, wherein it denied
Appellants’ petitions for involuntary termination of parental rights of Mother
to K.P.F. and L.T.B., as well as K.P.F.’s Father to K.P.F. Appellants then filed
timely notices of appeal and concise statements pursuant to Pa.R.A.P.
1925(a)(2)(i) at each orphans’ court’s docket.5 The orphans’ court did not file
a Rule 1925(a) opinion, but instead issued a letter stating that it was relying
on its February 13, 2023 opinion and order.
Presently, Appellants raise six issues for our review:
I. Whether the [orphans’] court erred and/or grossly abused its
discretion in finding that [Appellants] have failed to prove by clear
and convincing evidence that their petition for involuntary
termination of Mother’s parental rights should be granted
pursuant to 23 Pa.C.S.[] § 2511(a)(1)[,] as the evidence of record
supports termination.
II. Whether the [orphans’] court erred and/or grossly abused its
discretion in finding that [Appellants] have failed to prove by clear
and convincing evidence that their petition for involuntary
termination of Mother’s parental rights should be granted
pursuant to 23 Pa.C.S.[] § 2511(a)(2)[,] as the court failed to
consider this section in [its] opinion and order, and the record
supports termination.
III. Whether the [orphans’] court erred and/or grossly abused its
discretion in both considering, and permitting evidence to be
presented over objection, Mother’s efforts to remedy the
conditions described in the petition for involuntary termination
when they were initiated subsequent to the notice of filing the
petition.
IV. Whether the [orphans’] court erred and/or grossly abused its
discretion in finding that while Mother did not provide essential
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5 We consolidated the appeals sua sponte.
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parental care, control, or subsistence, the causes of incapacity can
and will be remedied.
V. Whether the [orphans’] court erred and/or grossly abused its
discretion in denying the petition for involuntary termination of
Mother’s parental rights due to finding a bond between the
[C]hildren and Mother but failing to then consider:
a. Whether the bond indicates a beneficial relationship that
should be preserved;
b. Whether the bond with [Appellants] is stronger than the
bond with Mother;
c. The substantial damage done to the [C]hildren by a
prolonged, unhealthy, pathological bond with Mother as it
affects [Appellants’] ability to provide the necessary love,
care, and stability that the [C]hildren have needed;
d. Whether termination was still appropriate when a bond
was found as termination provides the [C]hildren with
permanency necessary for the fulfillment of their potential
in a permanent, healthy, safe environment.
VI. Whether the [orphans’] court erred and/or grossly abused its
discretion in finding that a denial of the petition for involuntary
termination of Mother’s parental rights will allow the [C]hildren to
remain in their home where they have formed a loving bond, and
are provided a safe, stable, and structured environment when the
denial prevents the same.
Appellants’ Brief at 4-6 (unnecessary capitalization omitted).
Before delving into the merits of Appellants’ issues, we must initially
consider, sua sponte, whether Children were appointed legal counsel to
represent their legal interests pursuant to 23 Pa.C.S. § 2313(a). Section
2313(a) provides that:
(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
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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. § 2313(a).
Our Supreme Court “has interpreted this section as requiring that the
common pleas court appoint an attorney to represent the child’s legal
interests, i.e., the child’s preferred outcome.” In re Adoption of K.M.G.,
240 A.3d 1218, 1235 (Pa. 2020) (cleaned up).6 The Court has further
instructed that “a single attorney cannot represent a child’s best interests and
legal interests if those interests conflict[,]” and “the orphans’ court must
determine whether counsel can represent the dual interests before appointing
an individual to serve as [guardian ad litem]/[c]ounsel for a child.” Id. at
1236. In addition, “the failure to appoint a separate attorney to represent the
child’s legal interests constitutes structural error, meaning it is not subject to
a harmless-error analysis[,]” and the issue is “non-waivable, because the right
belonged to the child who, given that he or she was unrepresented, could not
have challenged the lack of counsel.” Id. at 1235 (cleaned up). Accordingly,
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6 A child’s legal interests are distinct from his or her best interests.See In
re T.S., 192 A.3d 1080, 1082 n.2 (Pa. 2018) (“‘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.”) (citations
omitted); In re Adoption of L.B.M., 161 A.3d 172, 174 (Pa. 2017) (“In cases
involving children, the law acknowledges two separate and distinct categories
of interest: a child’s legal interests, which are synonymous with the child’s
preferred outcome, and a child’s best interests, which the trial court must
determine.”) (footnotes omitted).
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our Supreme Court has granted appellate courts sua sponte review to assess
“(1) whether the orphans’ court appointed counsel to represent the legal
interests of the children and (2) if the appointed counsel also serves as
[guardian ad litem], whether the orphans’ court determined that the child’s
best interests and legal interests did not conflict.” Id. at 1236.
Here, it is unclear to us what role Attorney Bistline played in the
proceedings below. On January 18, 2022, the orphans’ court entered an order
pertaining to K.P.F., which stated in relevant part:
Maryann Bistline, Esquire is hereby appointed the Guardian Ad
Litem for [K.P.F.] to represent his interest in the above captioned
adoption action. Any fees due to the Guardian Ad Litem shall be
paid at a rate of $ ___ per hour.
Order, 1/18/22 (blank space in original).7
Similarly, with respect to L.T.B, the court filed the following order on
January 18, 2022, which provided in relevant part:
Maryann Bistline, Esquire is hereby appointed the Guardian Ad
Litem for [L.T.B.] to represent his interest in the above captioned
adoption action. Any fees due to the Guardian Ad Litem shall be
paid at a rate of $ ___ per hour.
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7 Though not filed until January 18, 2022, this order was dated November 23,
2021, and pertains to the petition to terminate Mother’s parental rights to
K.P.F. A nearly identical order — filed on January 18, 2022 and mistakenly
dated January 10, 2021 — also appears in the record and pertains to the
petition to terminate K.P.F.’s Father’s parental rights. It likewise appoints
Attorney Bistline as K.P.F.’s guardian ad litem.
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Order, 1/18/22 (blank space in original).8 Thus, although the orders do not
specify what interests Attorney Bistline is to represent, she is identified in the
appointment orders as Children’s guardian ad litem, not specifically as their
legal counsel.
Our review of the transcripts also reveals that Attorney Bistline was
identified as Children’s guardian ad litem during the proceedings. See N.T.,
10/18/22, at 1 (orphans’ court’s stating, “Present in the courtroom is Maryann
Joyce Bistline. She is guardian ad litem for the minor [C]hildren.”); id. at 92
(orphans’ court’s conveying, “Attorney Bistline has been appointed as
guardian ad litem for the [C]hildren. So I would like her input on [whether
the Children should be interviewed], if you don’t mind placing it. If you don’t
have input[,] that’s fine[,] but I do ask for your input on the record as guardian
ad litem for the [C]hildren and you may have to get near a microphone.”); id.
at 93 (orphans’ court’s saying that, with respect to the Children’s interviews,
“I would prefer that the attorneys are present and … I am agreeable to the
attorneys asking the questions or talking to the [C]hildren, unless that is not
preferred. I’ll leave that to the guardian ad litem. Why don’t we do it this
way. Why don’t we have the attorneys provide areas of discussion and I will
handle the direct communications with the [C]hildren, with the attorneys
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8 This order was also dated November 23, 2021, and pertains to the petition
to terminate Mother’s parental rights to L.T.B. There is another order — dated
November 23 ,2021, and entered on January 18, 2022 — which pertains to
L.T.B.’s unknown father and states that “Maryann Joyce Bistline, Esquire, is
hereby appointed to represent the child listed in paragraph 6 of the petition[,
i.e., L.T.B.]”. Order, 1/18/22.
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present but the attorneys can give me their areas that they would like me to
address with the [C]hildren and they can be specific questions or areas, either
way.”), but see N.T., 12/22/22, at 1 (“And Counsel for the minor [C]hildren,
Maryann Joyce Bistline[,] is in the courtroom.”); N.T., 2/8/23, at 1 (orphans’
court’s stating, “Present in the courtroom, Maryanne Joyce Bistline, counsel
for the minor [C]hildren.”). Separate interviews of K.P.F. and L.T.B. took place
on December 14, 2022, where both the orphans’ court and Attorney Bistline
asked them questions. See generally N.T., 12/14/22.
Based on the foregoing, we are unable to verify whether the orphans’
court appointed counsel to represent K.P.F. and L.T.B.’s respective legal
interests, as it appears from the face of the record that Attorney Bistline was
appointed to be their guardian ad litem. Further, if Attorney Bistline was
appointed to be Children’s guardian ad litem and legal counsel, we are unable
to find anything in the record showing that the orphans’ court determined that
Children’s best interests and legal interests did not conflict. See In re
Adoption of K.M.G., supra.
As a result, we are compelled to vacate the orphans’ court’s orders and
remand for further proceedings. On remand, the orphans’ court must
determine whether, pursuant to Section 2313(a), Attorney Bistline is able to
represent, without conflict, both the best interests and legal interests of each
child. If the orphans’ court ascertains that no conflict exists between each
child’s best interests and legal interests, then the court shall re-enter its order
denying Appellants’ petitions for involuntary termination of parental rights at
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each orphans’ court docket.9, 10 However, if the court concludes that there is
a conflict between K.P.F.’s legal and best interests or L.T.B.’s legal and best
interests, then the court shall appoint separate legal counsel for that child and
conduct a new termination hearing so that legal counsel has an opportunity
to advocate for that child’s legal interests. See Interest of A.J.R.O., 270
A.3d at 571 (giving similar remand instructions).
Orders vacated. Cases remanded. Jurisdiction relinquished.
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9 Such an order would constitute a new, final, appealable order to this Court.
See Interest of A.J.R.O., 270 A.3d 563, 571 n.11 (Pa. Super. 2022) (citing
In re H.S.W.C.-B., 836 A.2d 908, 911 (Pa. 2003) (holding that “an order
terminating or preserving parental rights ... shall be deemed final when
entered”)).
10 We also ask the orphans’ court to ensure that it has adequately addressed
the errors raised by Appellants in their concise statements. See Pa.R.A.P.
1925(a)(1) (providing that “the judge who entered the order giving rise to the
notice of appeal, if the reasons for the order do not already appear of record,
shall within the period set forth in Pa.R.A.P. 1931(a)(1) file of record at least
a brief opinion of the reasons for the order, or for the rulings or other errors
complained of, or shall specify in writing the place in the record where such
reasons may be found”); Commonwealth v. Widger, 237 A.3d 1151, 1158
n.5 (Pa. Super. 2020) (“It is incumbent upon a trial court to provide this Court
with its Rule 1925(a) opinion addressing an appellant’s issues, with citation to
the record, to permit a meaningful and effective review of the issues raised
and efficient use of judicial resources.”); see also Appellants’ Brief at 21-22
(claiming that the orphans’ court did not analyze termination under Section
2511(a)(2) in its February 13, 2023 opinion); Mother’s Brief at 7
(acknowledging that the orphans’ court’s opinion “does not specifically state
that the … court found that there was not sufficient evidence to terminate
Mother’s parental rights under [S]ection 2511(a)(2)”).
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Date: 10/23/2023
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