J-S39044-17
2018 PA Super 202
IN RE: J.T.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
:
APPEAL OF: B.L.M., NATURAL :
FATHER : No. 367 WDA 2017
Appeal from the Decree February 7, 2017
In the Court of Common Pleas of Blair County
Orphans’ Court at No(s): 2016 AD 52-A
BEFORE: BENDER, P.J.E., BOWES, and STRASSBURGER*, JJ.
OPINION BY STRASSBURGER, J.: FILED JULY 11, 2018
B.L.M. (Father) appeals from the decree entered February 7, 2017, in
the Court of Common Pleas of Blair County, which terminated involuntarily
his parental rights to his minor son, J.T.M. (Child), born in June 2000.1 We
affirm.
The record reveals that Blair County Children, Youth and Families
(CYF) has a lengthy history of involvement with Child, dating back to 2012.
N.T., 1/25/2017, at 7. Child entered foster care on January 28, 2016, due
to allegations that Mother was neglecting the medical needs of Child’s half-
sister, and due to allegations that Mother took the children with her to
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The orphans’ court entered a separate decree on February 9, 2017,
confirming the consent of Child’s mother, N.K. (Mother), and terminating her
parental rights. Mother did not file a Brief in connection with this appeal,
nor did she file her own separate appeal.
J-S39044-17
purchase “illicit substances.” Application for Emergency Protective Custody,
1/28/2016, at 3. Father was not available to care for Child at that time, as
he had been incarcerated since approximately 2014. N.T., 1/25/2017, at
39. Child was adjudicated dependent by order entered February 17, 2016.2
On December 8, 2016, CYF filed a petition to terminate Father’s
parental rights to Child involuntarily. The orphans’ court conducted a
termination hearing on December 20, 2016, January 25, 2017, and February
6, 2017. Following the hearing, on February 7, 2017, the court entered a
decree terminating Father’s parental rights. Father timely filed a notice of
appeal on February 22, 2017, along with a concise statement of errors
complained of on appeal.
Father now raises the following issues for our review.
I. Whether a remand is necessary, in order to appoint counsel
for the child?
II. Whether the evidence is sufficient to show that the Father
abandoned his [p]arental [r]ole?
III. Whether the evidence establishes that [] Father is incapable
of providing parental care[?]
Father’s Brief at 6 (orphans’ court answers omitted).
We review Father’s issues mindful of our well-settled standard of
review.
____________________________________________
2 Aggravated circumstances were found as to Father on September 21,
2016, due to Father’s failure to maintain contact. Child’s permanency goal
was changed to adoption by a separate order entered that same day.
-2-
J-S39044-17
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
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).
In his first issue, Father argues that the orphans’ court erred by failing
to appoint counsel to represent Child’s legal interests pursuant to 23 Pa.C.S.
§ 2313(a) and our Supreme Court’s recent holding in In Re Adoption of
L.B.M., 2017 Pa. LEXIS 1150, 2017 WL 2257203 (Pa. 2017). Father
acknowledges that Child had the benefit of a guardian ad litem (GAL) during
the termination proceedings, but contends that “the statutory requirement
for ‘counsel’ in a contested termination case is not satisfied by the
appointment of a GAL[.]” Father’s Brief at 11.
Initially, we observe that Father did not raise this claim before the
orphans’ court, and failed to include it in his concise statement of errors
complained of on appeal. Under normal circumstances, this would result in
waiver. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”); Krebs v. United
Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (citations
-3-
J-S39044-17
omitted) (“[A]ny issue not raised in a statement of matters complained of on
appeal is deemed waived.”).
However, Father contends that this claim cannot be waived, and
directs our attention to In re Adoption of G.K.T., 75 A.3d 521 (Pa. Super.
2013). In that case, the appellant father argued that the orphans’ court
erred by failing to appoint counsel for G.K.T. pursuant to Section 2313(a).
Id. at 525-26. We held that the appellant did not waive this claim, even
though he failed to raise it before the court. Id. at 526. We explained, “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.” Id. (quoting In re E.F.H., 751 A.2d 1186, 1189 (Pa.
Super. 2000)).
Applying G.K.T. to the facts of this case, we agree that Father cannot
waive Child’s right to counsel. Therefore, we proceed to address the merits
of this issue. Section 2313(a) 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. § 2313(a).
In L.B.M., our Supreme Court held that Section 2313(a) requires
courts to appoint counsel to represent the legal interests of any child
-4-
J-S39044-17
involved in a contested involuntarily termination proceeding. 2017 Pa.
LEXIS 1150 at 16; 2017 WL 2257203 at 6. The Court explained that a
child’s legal interests are distinct from his or her best interests, in that a
child’s legal interests are synonymous with the child’s preferred outcome,
and a child’s best interests must be determined by the court. 2017 Pa.
LEXIS 1150 at 2-3; 2017 WL 2257203 at 1.
Importantly, the justices disagreed on whether an attorney who serves
as a child’s dependency GAL can also serve as that child’s counsel during
contested involuntary termination proceedings. In the Court’s lead opinion,
Justice Wecht, joined by Justices Donohue and Dougherty, opined that a
child’s legal interests cannot be represented by his or her dependency GAL.
2017 Pa. LEXIS 1150 at 16-19; 2017 WL 2257203 at 7. However, the
Court’s remaining four justices disagreed with that portion of the lead
opinion, and opined in a series of concurring and dissenting opinions that a
child’s dependency GAL may serve as his or her counsel, so long as the
GAL’s dual role does not create a conflict of interest. 2017 Pa. LEXIS 1150
at 23-47; 2017 WL 2257203 at 9. Thus, in this case, we conclude that the
orphans’ court was not required to appoint a separate attorney to represent
Child’s legal interests, so long as Child’s GAL was an attorney, and so long
as Child’s legal and best interests did not appear to be in conflict.
Upon review, it is clear that Child’s legal interests and best interests
were aligned throughout the termination proceedings. During the hearing,
on December 30, 2016, Child informed the orphans’ court that he did not
-5-
J-S39044-17
want to be placed in Father’s care, and that he hoped to live in a foster
home and be adopted after leaving his current residential treatment facility.
N.T., 12/30/2016, at 18.3 Child’s GAL, Gary A. Caldwell, Esquire, argued on
behalf of Child’s position during the hearing, and filed a brief before this
Court supporting the termination of Father’s parental rights. Thus, Attorney
Caldwell represented both Child’s articulated legal interest and what
Attorney Caldwell viewed as Child’s best interests. Since these interests
were aligned, no conflict existed that would warrant the appointment of
separate legal counsel for Child. Therefore, no remand is necessary.4
We next consider Father’s second and third issues, in which he argues
that the orphans’ court abused its discretion by terminating his parental
rights. Termination of parental rights is governed by Section 2511 of the
____________________________________________
3 As the orphans’ court noted in its 1925(a) opinion, “The subject child has
specifically indicated through his direct testimony in court, and through his
treating therapists, that he does not want to live with … Father or have any
contact with him.” Orphans’ Court Opinion, 3/3/2017, at 10.
4 The author of this Opinion dissented in L.B.M. to opine that the language
of Section 2313(a) “suggest[ed] that the legislature intended to differentiate
between legal counsel and GAL in TPR proceedings,” and favored remand for
a new hearing with the appointment of legal counsel because “the difference
between the child’s interests and the best interest of the child is staggering,
and it is readily apparent that a GAL appointed to represent the [children’s]
interests in the dependency proceedings cannot advocate effectively on the
[children’s] behalf with respect to issues raised surrounding the TPR and
adoption without creating a conflict.” In re: Adoption of L.B.M., 2016 WL
3080124 at *34 (Pa. Super. May 31, 2016) (unpublished) (Strassburger, J.,
dissenting). The author agrees with the position taken by Justice Wecht in
the Supreme Court’s Opinion, but is bound to follow the reasoning of the
four justices as discussed above.
-6-
J-S39044-17
Adoption Act, 23 Pa.C.S. §§ 2101-2938, 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).
In this case, the orphans’ court terminated Father’s parental rights
pursuant to Sections 2511(a)(1), (2), and (b). We need only agree with the
orphans’ court as to any one subsection of Section 2511(a) in order to
affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc),
appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court’s
decision to terminate under Sections 2511(a)(1), which provides as follows. 5
____________________________________________
5 In his concise statement of errors complained of on appeal, statement of
questions involved, and in the argument section of his Brief, Father
challenges the termination of his parental rights pursuant to Section
2511(a)(1) and (2). Father does not raise any challenge as to the
termination of his parental rights pursuant to Section 2511(b). Therefore,
we conclude that Father preserved a challenge as to Section 2511(a) only,
and that any challenge as to Section 2511(b) is waived. See In re
M.Z.T.M.W., 2017 Pa. Super. LEXIS 360, 2017 WL 2153892 (Pa. Super.
(Footnote Continued Next Page)
-7-
J-S39044-17
(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:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing
of the petition either has evidenced a settled purpose
of relinquishing parental claim to a child or has
refused or failed to perform parental duties.
23 Pa.C.S. § 2511(a)(1).
To meet the requirements of this section, “the moving party must
produce clear and convincing evidence of conduct, sustained for at least the
six months prior to the filing of the termination petition, which reveals a
settled intent to relinquish parental claim to a child or a refusal or failure to
perform parental duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super.
2008) (citing In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super.
2006)). The court must then consider “the parent’s explanation for his or
her conduct” and “the post-abandonment contact between parent and child”
before moving on to analyze Section 2511(b). Id. (quoting In re Adoption
of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998)).
This Court has explained that a parent does not perform his or her
parental duties by displaying a “merely passive interest in the development
(Footnote Continued) _______________________
2017) (holding that the appellant waived her challenge to Section 2511(b)
by failing to include it in her concise statement and statement of question
involved, and that the appellant abandoned any challenge to Section
2511(a)(2) and (5)).
-8-
J-S39044-17
of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal
denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462
(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)). Rather,
“[p]arental duty requires that the parent act affirmatively with good faith
interest and effort, and not yield to every problem, in order to maintain the
parent-child relationship to the best of his or her ability, even in difficult
circumstances.” Id. (citation omitted). Critically, incarceration does not
relieve a parent of the obligation to perform parental duties. An
incarcerated parent must “utilize available resources to continue a
relationship” with his or her child. In re Adoption of S.P., 47 A.3d 817,
828 (Pa. 2012) (discussing In re Adoption of McCray, 331 A.2d 652 (Pa.
1975)).
In the instant matter, the orphans’ court found that Father refused
and/or failed to perform his parental duties, as Father did not make
reasonable efforts to remain a part of Child’s life. Orphans’ Court Opinion,
3/3/2017, at 16. The court explained that Father sent a single letter to Child
during his dependency. Id. While Father had his sister contact Child on his
behalf, this contact was “very limited.” Id.
Father argues that he visited with Child regularly prior to his
incarceration in 2014. Father’s brief at 13. Father further argues that he
attempted to maintain contact with Child following his incarceration by
sending letters and cards, and by having family members contact Child on
-9-
J-S39044-17
his behalf. Id. Father emphasizes that Child’s former foster mother
prevented him from contacting Child starting in March 2016, and that the
order adjudicating Child dependent prevented Father from having visits with
Child after his release. Id.
The record supports the findings of the orphans’ court. During the
termination hearing, the court heard the testimony of Child, who participated
via telephone from his residential treatment facility. Child informed the
court that he last saw Father “[a]bout two years ago.” N.T., 12/20/2016, at
17. Child explained that Father was not actually caring for him at that time,
but that he was only seeing Father “here and there.” Id. Child recalled that
he has not seen Father since his incarceration, and that his last contact with
Father was a letter sent to the home of his former foster mother, W.D.
(Foster Mother). Id. at 16-17.
In addition, CYF presented the testimony of Foster Mother. Foster
Mother testified that Child resided in her home from January 28, 2016, until
July 29, 2016. N.T., 2/6/2017, at 36. Concerning Father’s attempts at
contacting Child, Foster Mother testified that Child received a single letter
from Father. Id. at 39. In addition, Father’s sister called Foster Mother’s
home “once possibly twice,” and sent Child a letter along with a box of
Easter candy. Id. at 37, 39. Foster Mother acknowledged that she did not
provide the letters to Child, nor she did allow Father’s sister to speak with
Child on the phone. Id. at 39-40, 42. Foster Mother explained that she was
- 10 -
J-S39044-17
advised by Child’s therapist in March 2016 that Child should not have any
contact with his biological family.6 Id. at 36, 41-42.
Concerning Father’s contact with CYF, the orphans’ court heard the
testimony of caseworker, Paige McCarthy. Ms. McCarthy testified that Father
contacted CYF in April 2016, but that he had no further contact between
then and January 2017.7 N.T., 1/25/2017, at 16. Ms. McCarthy explained
that Father was released from incarceration and resided at a halfway house
from April 2016 until May 31, 2016. Id. at 17. Father absconded from the
halfway house on May 31, 2016. Id. On September 1, 2016, Ms. McCarthy
was notified that Father had been taken back into custody. Id. Father was
then incarcerated until October 31, 2016, at which time he was paroled once
again to a halfway house. Id. at 18-19. Father left Ms. McCarthy a
____________________________________________
6 Our review of the record reveals that the court entered a series of orders
during Child’s dependency, directing that Father would not be permitted to
have contact with Child unless that contact was approved by Child’s
therapist. See, e.g., Permanency Review Order, 6/27/2016, at 9 (“The
father shall be permitted contact with [Child] only as may be deemed
therapeutically appropriate by [Child’s] therapist.”).
7 A permanency review order, entered June 27, 2016, provides the following
description of Father’s contact with CYF:
[T]he father contacted the Agency on 3/9/16 and reported that
he had been released from SCI-Forest and wanted to visit his
son. He also called on 3/31/16 for an update about his son. On
4/4/16, he came to the Agency office with his power-of-attorney
and reported that he was receiving drug and alcohol treatment
. . . . The father has not maintained any further contact with the
Agency, nor his son, nor any of the service providers.
Permanency Review Order, 6/27/2016, at 2.
- 11 -
J-S39044-17
voicemail and/or e-mail in January 2017, indicating that he no longer was
residing at the halfway house. Id. at 5, 19.
Thus, the record confirms that Father refused or failed to perform
parental duties for the six months immediately preceding the filing of CYF’s
termination petition on December 8, 2016. The record establishes that
Father has had no direct contact with Child since approximately 2014. While
Father made an effort to contact Child indirectly by sending a letter to
Child’s foster home, and by having his sister try to contact Child on his
behalf, these efforts were minimal. Further, it does not appear from the
record that Father made any effort to contact Child at all after Child left
Foster Mother’s home in July 2016.
While it is unlikely that Father would have been allowed to speak with
Child if he had tried to contact him more frequently, due to the prohibition
put in place by Child’s therapist, this does not excuse Father’s failure to
perform parental duties. This Court has stressed that a parent must
exercise reasonable firmness in resisting the obstacles which limit his or her
ability to maintain a parent/child relationship. B.,N.M., 856 A.2d at 855. In
this case, it is clear that Father made no effort to resist these obstacles.
Most critically, Father failed to maintain contact with CYF. Father contacted
CYF in April 2016, but then absconded from a halfway house and failed to
contact CYF again until January 2017.
- 12 -
J-S39044-17
Accordingly, we conclude that the orphans’ court did not abuse its
discretion by terminating involuntarily Father’s parental rights to Child
pursuant to Section 2511(a)(1). Therefore, we affirm the court’s February
7, 2017 decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2018
- 13 -