In Re: Adoption of D.S.

J-A08017-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF D.S. : IN THE SUPERIOR COURT OF
:
: PENNSYLVANIA
:
APPEAL OF: S.S., MOTHER, :
: No. 3281 EDA 2015
Appeal from the Order entered on September 30, 2015
in the Court of Common Pleas of Pike County,
Civil Division, No(s): 11 OCA 2015
BEFORE: BOWES, OLSON, and STRASSBURGER*, JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 10, 2016
S.F. f/k/a S.S. (“Mother”) appeals from the order dated and entered
on September 30, 2015, denying her petition to involuntarily terminate the
parental rights of her former husband, M.S. (“Father”), to their minor son,
D.S., born in April of 2003,1 (“Child”), pursuant to the Adoption Act, 23
Pa.C.S. § 2511(a)(1) and (b).2 We vacate, and remand.
The trial court set forth the relevant history of this case in its
opinion as follows.
[Mother] filed for [d]ivorce from [Father in June of 2006]. [The
trial court] granted a Protection From Abuse (“PFA”) Order in
[Mother’s] favor on August 1, 2006 for a period of three (3)
years. A Custody Hearing occurred on August 3, 2006 which
resulted in the Report and Recommendation of a Hearing Officer
1
N.T., 9/29/15, at 6.
2
Although the trial court decree did not cite a specific subsection of section
2511(a), it is apparent from the language in its opinion entered on
November 19, 2015, that it denied termination of Father’s parental rights
pursuant to section 2511(a)(1) and (b).
*Retired Senior Judge assigned to the Superior Court.
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adopting the custody arrangement provided for in the Protection
From Abuse Order.
[The trial court] adopted the Report and Recommendation of an
appointed Hearing Officer on August 23, 2006. That Order
adopted the custodial arrangement established in the PFA Order,
granting [Mother] sole legal and physical custody of [Child] and
allowing [Father] visitation only in the presence of third-party
supervision such as Catholic Social Services or Children and
Youth Services. The parties were eventually divorced by Decree
dated [March of 2008].
[Father] filed a [c]omplaint for [v]isitation on May 18, 2015.
[Mother] filed a [r]eport of [i]ntention to [a]dopt and a [p]etition
for [i]nvoluntary [r]elinquishment of [Father’s] [p]arental
[r]ights on July 22, 2015.
Trial Court Opinion, 11/19/15, at 1-2.
On August 17, 2015, Mother’s fiancé, R.E., filed a petition for adoption
of Child. The trial court held a hearing on Mother’s termination petition on
September 29, 2015. At the hearing, Mother testified on her own behalf and
presented the testimony of R.E. Father testified on his own behalf.
In an order dated and entered on September 30, 2015, the trial court
denied Mother’s termination petition.3 On October 29, 2015, Mother timely
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).
In her brief on appeal, Mother raises three questions for this Court’s
review, as follows:
3
On October 1, 2015, the trial court entered an order that canceled the
hearing on R.E.’s adoption petition, scheduled to occur on November 3,
2015, as moot.
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1. Did [Mother] exhibit by clear and convincing evidence that
Father had both evidenced a settled purpose of relinquishing a
parental claim to [Child] and failed [to] perform essential
parental duties for [Child’s] entire life?
2. Did the trial court err in giving weight to Mother’s alleged
attempts to block access to [Child] when Father made no
showing that he made substantial efforts to overcome such
obstacles and the law requires he utilize all available resources?
3. Was it reversible error for the trial court to not appoint a
guardian ad litem [sic] when petitioner included a request for the
appointment of a guardian and the law requires such an
appointment?
Mother’s Brief, at 6.4
Initially, we address Mother’s third issue stating that the trial court
erred in failing to appoint a guardian ad litem to represent Child, pursuant to
section 2313 of the Adoption Act, which provides as follows:
§ 2313. Representation
(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. § 2313.5
4
We note that Father, who was represented by counsel, did not file a brief.
5
In the statement of questions raised section of her brief, Mother alleges
that the trial court’s failure to appoint a guardian ad litem constituted
reversible error. Thereafter, throughout her brief, Mother refers
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As this issue presents the interpretation of a statute, our scope and
standard of review are as follows:
[T]he interpretation and application of a statute is a question of
law that compels plenary review to determine whether the court
committed an error of law. As with all questions of law, the
appellate standard of review is de novo and the appellate scope
of review is plenary.
B.K.M. v. J.A.M., 50 A.3d 168, 172 (Pa. Super. 2012) (quotations omitted).
In In re K.M., 53 A.3d 781, 787 (Pa. Super. 2012), a panel of this
Court stated that section 2313(a) mandates that the trial court appoint
counsel in all cases where involuntary termination of parental rights is
contested. The issue in In re K.M. was whether the court was required to
appoint a separate attorney to represent the child in a contested proceeding
interchangeably to the court’s failure to appoint a “guardian ad litem” and/or
“counsel” for Child. Despite this, the terms “guardian ad litem” and
“counsel” carry significant legal distinctions for purposes of section 2313. In
contested termination proceedings, the appointment of counsel for the child
is mandatory under section 2313. See 23 Pa.C.S.A. § 2313. However, the
appointment of a guardian ad litem in such proceedings falls within the
discretion of the court. Id.
In light of this distinction, and to apply the proper standard, we must
consider whether Mother raised and preserved her right to appellate review
of an objection to the trial court’s failure to appoint counsel for Child in this
contested termination proceeding. Our review of the record confirms that
Mother properly raised and preserved this issue. In her petition for
involuntary relinquishment of Father’s parental rights, Mother stated that
she would advise the court if Father intended to contest the proceedings “so
that an attorney may be appointed for [Child] as required by 23 Pa.C.S.A.
§ 2313[.]” Petition, 7/22/15, at 4 ¶17. Mother’s concise statement also
provided that, “the court was required to appoint counsel for [Child].”
Concise Statement, 10/29/15, at 2 ¶5. Although the trial court, in its
Pa.R.A.P. 1925(a) opinion, recognized that Mother raised this issue in her
concise statement, the trial court failed to address the issue in the opinion.
See Trial Court Opinion, 11/19/15, at 2.
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when the trial court appointed a guardian ad litem, who was an attorney.
More simply, In re K.M. asked whether the attorney and the guardian ad
litem representing a child in a contested proceeding must be different
individuals. This Court found that the statute does not require such a
duplicative appointment. Although the precise issue in In re K.M. is not
before us, the case makes clear that the appointment of counsel is
mandatory where termination proceedings are contested.
In In re Adoption of G.K.T., 75 A.3d 521 (Pa. Super. 2013), a panel
of this Court also held that a trial court committed reversible error in failing
to appoint counsel. The panel in In re Adoption of G.K.T. stated as
follows:
The right to counsel belongs to the child, and there is no
appointed counsel for the child who could have raised the
child’s rights in the proceedings before the [orphans’]
court. The question goes to a fundamental statutory
requisite to the [orphans’] court’s decision in this matter.
Upon our careful review of the record in this case and the
[orphans’] court’s disposition, we must conclude that the
[orphans’] court committed an error of law by failing to
appoint counsel to represent the child pursuant to 23
Pa.C.S.A. § 2313(a), which directs that the court “shall”
appoint such counsel. This Court has previously observed
that the word “shall” is mandatory, or imperative when
used in a statute, although whether that word is directory
or permissive is dependent upon the intent of the
Legislature. Tyler v. King, 344 Pa. Super. 78, 496 A.2d
16, 19 (1985). Regarding the Legislature’s use of the
word “shall” in section 2313(a) of the Adoption Act, this
Court has interpreted the word “shall” in section 2313(a)
as being mandatory, not permissive, and as serving as a
direction to the court to appoint counsel.
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[In re E.F.H., 751 A.2d 1186,] 1189-1190 [(Pa. Super. 2000)].
After careful review, we find E.F.H. to be controlling in this
matter. The orphans’ court did not appoint counsel for the
[c]hild, despite section 2313’s mandatory language to the
contrary. Adoptive Couple and the orphan’s court acknowledged
that no counsel was appointed. . . . However, Adoptive Couple
argues that the error was harmless because “at the time of
placement and throughout the [orphans’] court proceedings,
[the [c]hild] would have been incapable of communicating with
[counsel].” . . .
We find this argument unavailing. “[T]he purpose of [section]
2313(a) is to ensure that the needs and welfare of a child will be
actively advanced by an advocate who owes loyalty only to the
child.” It may be true that when the child is a newborn,
counsel’s role is limited by the child’s inability to communicate
with him or her. However, we do not believe that it follows that
counsel is unnecessary or gives us cause to ignore the plain text
of section 2313(a). Counsel would still be required to
independently advocate for the [c]hild’s best interests,
regardless of whether the [c]hild can communicate his
preference or not. We decline Adoptive Couple’s invitation to
read an age component into section 2313(a)’s otherwise
mandatory text. Based on these considerations, we conclude
that the orphans’ court committed reversible error in failing to
appoint a counsel for the [c]hild as required by section 2313(a).
In re Adoption of G.K.T., 75 A.3d at 526-527 (quotation and citations
omitted) (footnote omitted) (emphasis in original).
The decisions cited above are controlling in this appeal. Accordingly,
we find that the trial court erred in failing to appoint counsel to represent
Child. We vacate the order, and remand the matter to the trial court for
appointment of counsel, and a new termination hearing.6
6
As we are vacating the trial court’s order and remanding for a new
termination hearing once counsel is appointed for Child, we need not
address Mother’s other two issues raised on appeal.
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Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2016
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