In Re: Z.P.F., Appeal of: B.L.F. ( 2021 )

J-S22039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: Z.P.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.L.F., FATHER :
:
:
:
:
: No. 489 MDA 2021
Appeal from the Decree Entered January 21, 2021
In the Court of Common Pleas of Schuylkill County Orphans' Court at
No(s): A63-021-20
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: July 30, 2021
This appeal concerns a decree entered by the Schuylkill County Orphans’
Court (trial court) terminating the parental rights of B.L.F. (Father) over the
minor child, Z.P.F. (the child). Father contends that the trial court abused its
discretion in entering the decree because he had no legal counsel at the time
it was entered; he also asserts that the decree should be vacated because the
evidence was insufficient to establish that his parental rights should be
terminated. Because it is undisputed that Father was uncounseled at the time
of termination, we accede to the trial court’s request to vacate the decree and
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* Retired Senior Judge assigned to the Superior Court.
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remand the case for further proceedings at which new counsel may be
appointed.1
In 2018, the child was placed with the Schuylkill County Children and
Youth Agency (CYS). In 2019, the placement goal for the child was changed
from reunification with Father to adoption. The next year, CYS filed a petition
to terminate Father’s parental rights and a hearing was initially scheduled to
take place on July 8, 2020. The trial court continued the hearing and ordered
that Father be permitted to retain court-appointed counsel. Two days later,
Counsel was appointed to represent Father.
However, Father notified the trial court on August 24, 2020, that he had
retained private counsel, and in response, the trial court vacated the order
appointing counsel. The hearing on CYS’s petition was then continued several
times prior to the date on which it was ultimately held, December 29, 2020.
A day before that hearing, Father’s privately-retained counsel informed the
trial court that she would be withdrawing from the case and that Father would
be representing himself. That same day, Father contacted the trial court to
give notice that his privately-retained counsel was not withdrawing after all.
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1 The trial court simultaneously entered a nearly identical decree terminating
the parental rights of A.M.K., the child’s mother, who has sought review of
that decree at appellate docket number 311 MDA 2021. The facts and legal
issues of both appeals are identical for present purposes.
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For reasons that are not clear from the record, Father did not attend the
hearing on December 29, 2020. Neither did Father’s privately-retained
counsel. The trial court contacted the office of private counsel and was told
that counsel was indeed withdrawing. Father did not contact the trial court to
explain why he had failed to appear or whether he was represented by an
attorney.
Exasperated by the numerous delays of the hearing and the lack of
explanation for Father’s absence, the trial court went on with the hearing. At
the conclusion of the testimony, the trial court entered a decree terminating
Father’s parental rights pursuant to the Pennsylvania Adoption Act, 23 Pa.C.S.
§ 2101, et seq. Father appealed and the trial court filed a 1925(a) opinion
summarizing the procedural history, case facts and applicable law. The trial
court analyzed the evidence and concluded that termination was proper under
subsections 2511(a)(1), 2511(a)(2), 2511(a)(5), 2511(a)(8), and 2511(b) of
the Adoption Act. See Trial Court 1925(a) Opinion, 1/21/2021, at 12-20.
In a supplemental 1925(a) opinion filed on March 2, 2021, the trial court
addressed additional evidentiary claims raised in Father’s 1925(b) statement
of issues complained of on appeal. See Trial Court Supplemental 1925(a)
Opinion, 3/2/2021, at 1-3. The trial court also responded to Father’s claim
that he was erroneously denied the right to be represented by counsel at the
hearing held on December 29, 2020. See id. at 2-3. The supplemental
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opinion implied that Father waived the right to counsel by failing to appear for
the hearing and not giving the court notice of his whereabouts. See id.
However, the trial court then filed a second supplemental 1925(a)
opinion, requesting this Court to vacate the decree on the ground that it was
entered while Father was uncounseled:
In consideration of the constitutional nature of parental rights, I
believe doing so was in error without first ascertaining the status
of Father’s representation by counsel. I request that the matter
be remanded so that current appointed counsel may represent
Father at a new hearing even if Father again fails to appear.
Trial Court Second Supplemental 1925(a) Opinion, 5/3/2021, at 2. Father has
raised the issue of lack of counsel in his appellate brief. See Appellant’s Brief,
at 13-16.
We agree with Father and the trial court that this case must be
remanded for a new hearing on CYS’s petition to terminate Father’s parental
rights.2 All such proceedings are governed by the Adoption Act, which
mandates that the trial 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.” 23
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2 A parent’s improper deprivation of the right to counsel at a termination
proceeding is an error of law that a reviewing court is required to correct,
regardless of whether the issue has been raised by the appellant. See
generally In re X.J., 105 A.3d 1, 4 (Pa. Super. 2014).
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Pa.C.S. § 2313(a.1). “[A]n indigent parent in a termination of parental rights
case has a constitutional right to counsel[.]” In re J.T., 983 A.2d 771, 774
(Pa. Super. 2009) (citations omitted).
In this case, the circumstances which caused the withdraw of Father’s
counsel and Father’s non-appearance at the hearing are unknown. Counsel
did not file a petition to withdraw as required by Pa.R.C.P. 1012,3 depriving
the trial court and Father of formal notice in advance of the hearing that
counsel was withdrawing. If that had been done, it would have been clear
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3 This procedural rule provides in pertinent part:
c) Leave of court to withdraw an appearance shall be sought by
petition pursuant to subdivision (d) or subdivision (e) as may be
applicable.
(d)(1) If the whereabouts of the party on whose behalf the
appearance was entered are known, the attorney shall
(i) set forth the address of that party in the petition.
(ii) serve notice of the petition on the party in the manner
provided by Rule 440.
(iii) file a certificate of service of the notice with the petition,
and
(iv) immediately notify the party by ordinary mail of the
entry of an order granting leave to withdraw. The notice shall
include a copy of the order.
Pa.R.C.P. 1012(c)-(d).
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why counsel was withdrawing and whether Father was then entitled to court-
appointed counsel.
Nonetheless, once counsel informed the trial court of her intent to
withdraw on the day of the hearing, Father was again entitled to notice from
the court regarding his right to have counsel reappointed. See generally In
re X.J., 105 A.3d 1, 4-5 (Pa. Super. 2014) (vacating termination decree where
record did not establish uncounseled parent had received adequate notice of
the right to counsel at the termination proceedings). It appears that such
notice was not given at that point. Accordingly, as both Father and the trial
court have requested, we vacate the decree of termination and remand the
case for further proceedings at which Father will receive the benefit of
appointed counsel.4
Decree Vacated. Case remanded with instructions. Jurisdiction
relinquished.
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4 Having disposed of this appeal based on Father’s right to representation at
the termination hearing, it is unnecessary for this Court to address the merits
of the remaining issues raised in Father’s appellate brief.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2021
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