J-A30013-18
2019 PA Super 28
IN THE INTEREST OF: M.V. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.M., NATURAL FATHER :
:
:
:
:
: No. 1035 WDA 2018
Appeal from the Order Entered June 7, 2018
In the Court of Common Pleas of Crawford County Orphans’ Court at
No(s): O.C. 2017-35
BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.
OPINION BY SHOGAN, J.: FILED FEBRUARY 6, 2019
Appellant, R.M. (“Father”), appeals from the June 7, 2018 order that
involuntarily terminated his parental rights to his daughter (“Child”), who was
born in September of 2013. After careful review, we affirm.
The orphans’ court summarized the relevant facts and procedural
history of this matter as follows:
The dependency action [underlying the termination of
parental rights in this matter] was commenced on January 15,
2016, when [Child], then two years of age, was residing with a
kinship provider. [Child] had previously lived with her mother,
[N.V. (hereinafter “Mother”)].
Notice of the hearing on the dependency petition, scheduled
for January 28, 2016, was sent by [Crawford County Children and
Youth Services (“CYS” or “the Agency”)] to Father at his post office
address by first class U.S. Mail as well as by certified mail, return
receipt requested.2 The first class mailing was not returned, and
Father signed the return receipt on February 10, 2016. He did not
attend the hearing set for January 28, 2016, which was reset for
February 18, 2016, at the request of the father of [Child’s] half-
brother. The Clerk of Court’s distribution stamp on the Order
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* Retired Senior Judge assigned to the Superior Court.
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continuing the hearing indicates that it also was sent to Father by
first class and certified mail.3 See DP Order, 2/9/16. The first class
mailing was not returned,4 and the receipt for the certified mailing
indicates delivery on February 23, 2016. The hearing officer’s
recommendation for dependency adjudication was adopted, and a
copy of this Court’s Order was sent to Father by regular mail. See
DP Order, 3/1/16.
2CYS’s Affidavit of Service is included in Petitioner’s
Exhibit 1 admitted into evidence at the termination
hearing. Accompanying copies of the dependency
petition and court Order were a summons to appear
and CYS correspondence.
3 Father states in Paragraph 3 of his “Petition to
Dismiss the Invol[u]ntary Termination of Parental
Rights Petition Against Natural Father [R.M.],” that
the record in the dependency proceedings “contains
an Affidavit of Service but no Certificate of Service
pursuant to Pa.[R.]J.C.P. 1345[(B)(d) and (C)]. Proof
of Service[],” concerning the continued hearing. This
is incorrect, as there is no such affidavit, and there is
a Certificate of Service of the Order filed by the Clerk
of Courts dated February 8, 2016.
4 The mailing is not in the packet of returned mailings
to Father maintained by the Clerk of Courts.
Father had been convicted following a jury trial on
November 17, 2015, of inter alia DUI-refusal, and Driving While
Operating Privileges Suspended-DUI Related, and was sentenced
on March 4, 2016, to undergo imprisonment in the Crawford
County Correctional Facility for ninety days, and a minimum of
eighteen months in a state correctional facility thereafter. Case
No. CR 760-2015 (Vardaro, P.J.). He was paroled on October 4,
2017.5
5 Although his RRR[I] minimum was 13½ months, he
was also serving a consecutive Gagnon II sentence of
eight months, with RRRI eligibility at 6 months, at
Case No. 20-316-2010.
Meanwhile, the goal of the dependency proceedings was
changed to adoption following a hearing held on or about May 31,
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2017, with Father’s whereabouts reported as unknown.6 DP Order,
6/8/17. Copies of notices and orders from this and prior review
hearings sent to Father were returned unclaimed, but a notice of
continuation sent on April 26, 2017, bore the return notation, “UTF
i.e., unable to forward, (incarcerated).” CYS thereafter attempted
to locate Father, but was unsuccessful because [his name was
listed incorrectly] in the Department of Corrections’ custodial
records.
6 [Child] has been in the foster care of [the pre-
adoptive parents], since September of 2016.
On August 25, 2017, CYS filed a petition to involuntarily
terminate Father’s parental rights pursuant to sections
2511(a)(1), (2), (5), and (8) of the Adoption Act.[] A hearing on
the petition scheduled for October 6, 2017, was postponed on
motion of the guardian ad litem until December 11, 2017. CYS’s
request for the appointment of counsel for Father, with whom CYS
had been in contact on October 20, 2017, was denied by the
undersigned without prejudice to Father filing an application in
conformity with Section 2313(a)(1) of the Adoption Act (which he
never did). Order, 11/6/17. CYS then filed the instant amended
petition, on November 22, 2017,8 along with a proposed order
which included the appointment of counsel for Father. Judge
Stevens signed the Order on November 28, 201[7], as noted
above. The hearing was again rescheduled for January 18, 2018,
to allow Father time to conduct discovery. Mother moved for a
continuance, and the hearing was again rescheduled for May 31,
2018. Order, 1/17/18 (Vardaro, P.J.).
8 The averment of Paragraph 3 of the original petition
that “the last known mailing address of the father is
unknown” was deleted in the amendment. Also
deleted therefrom, apparently inadvertently, were the
averments that Father is “an adult individual, whose
parental rights in and to [Child] have not been
terminated.” CYS served Father personally with the
amended petition on November 28, 2017. Aff’d. of
Service, 4/16/18.
Father and his counsel had attended the ninety-day
permanency review hearing begun on November 28, 2017, and
completed on December 19, 2017. The hearing officer’s
recommendation and report, denying Father visitation rights, was
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adopted by President Judge Anthony J. Vardaro. DP Order, 1/2/18.
Father’s objections, filed on January 5, 2018, and objected to by
CYS as untimely, have not been heard by Judge Vardaro.9 Father
did not object, however, to the denial of his visitation rights by
the Order adopting the hearing officer’s recommendation following
the subsequent ninety-day review hearing held on April 11,
2018.10 DP Order, 4/17/18 (Vardaro, P.J.). Father did file in the
dependency action a “Petition to Strike Adjudication Order, March
1, 2016 as to Natural Father [R.M.],” and a corresponding petition
in the instant action, both on May 9, 2018. The latter was denied
and the termination hearing, commenced on May 31, 2018, was
concluded on June 5, 2018. This Court’s findings of fact and
reasons for terminating Father’s parental rights were stated on
the record at the conclusion of the hearing. See Transcript of
Proceedings Taken at Time of the Involuntary Termination Hearing
(hereinafter, “Tr.”), 6/5/2018, at 27-41. …
9 A hearing on the objections was scheduled for March
2, 2018, but rescheduled to March 7, 2018, on CYS’s
motion. On Father’s motions, the hearing was
rescheduled again for April 5, 2018, and for April 12,
2018. Upon hearing, the matter was referred to the
undersigned. DP Orders, 4/12/18 & 5/2/18 (Stevens,
J.). Father was advised that he must seek rehearing
before Judge Vardaro in conformity with the
coordinate jurisdiction doctrine. DP Order, 5/18/18.
Father’s motion for re-hearing, filed on May 31, 2018,
has not been addressed.
10 Thathearing was rescheduled from March 29, 2018,
at the guardian ad litem’s request.
Orphans’ Court Opinion, 7/23/18, at 2-5 (footnote 7 omitted).
The orphans’ court terminated Father’s parental rights on June 7, 2018,1
and Father filed a counseled notice of appeal and statement of errors
____________________________________________
1The June 7, 2018 order also terminated Mother’s parental rights. Mother is
not a party to this appeal.
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complained of on appeal on July 6, 2018.2 The orphans’ court filed its
Pa.R.A.P. 1925(a) opinion on July 23, 2018.
Prior to addressing Father’s issues, we address sua sponte whether the
requirements of 23 Pa.C.S. § 2313(a), which addresses a child’s right to
counsel, have been satisfied in this case.3 Children have a statutory right to
counsel in contested involuntary termination proceedings, as follows:
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 the case of In re T.S., 192 A.3d 1080 (Pa. 2018),4 our Supreme
Court noted that although the failure to appoint counsel in a contested
termination of parental rights case implicates a structural error in the
____________________________________________
2 The orphans’ court granted Father’s petition for In Forma Pauperis (“IFP”)
status on July 18, 2018.
3 The right to counsel belongs to the child, and “[t]his Court must raise the
failure to appoint statutorily-required counsel for children sua sponte, as
children are unable to raise the issue on their own behalf due to their
minority.” In re Adoption of T.M.L.M., 184 A.3d 585, 588 (Pa. Super. 2018)
(citation omitted).
4Petition for Certiorari Docketed sub nom. T.H.-H. v. Allegheny County
Office of Children, Youth and Families, et al., December 11, 2018 (No.
18-6997).
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proceedings, a structural error does not automatically render an issue non-
waiveable. Id. at 1087. “Structural error means only that no harmless-error
analysis is relevant.” Id. However, the Supreme Court concluded that the
statutory right to counsel belongs to the child alone and found the issue could
not be waived. Id.
The T.S. Court also discussed whether a Guardian Ad Litem (“GAL”) who
is an attorney may represent a child’s best interests and legal interests in a
termination proceeding, or whether the failure to appoint separate counsel to
represent a child’s legal interests constitutes error.5 The Court also analyzed
the case of In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017), and noted
that a majority of the Court in L.B.M. agreed that:
(a) in the context of contested termination-of-parental-rights
(“TPR”) proceedings, the first sentence of Section 2313(a)
requires that the common pleas court appoint an attorney to
represent the child’s legal interests, i.e., the child’s preferred
outcome; (b) where there is a conflict between the child’s legal
interests and his best interests, an attorney-guardian ad litem (an
“attorney-GAL”), who advocates for the child’s best interests,
cannot simultaneously represent the child’s legal interests; and
(c) in such a circumstance, the failure to appoint a separate
____________________________________________
5 A child’s “legal interests” and “best interests” are defined as follows:
“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.
Pa.R.J.C.P. 1154, comment.
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attorney to represent the child’s legal interests constitutes
structural error, meaning it is not subject to a harmless-error
analysis.
T.S., 192 A.3d at 1082. The T.S. Court concluded: “[D]uring contested
termination-of-parental-rights proceedings where there is no conflict between
a child’s legal and best interests, an attorney-guardian ad litem representing
the child’s best interests can also represent the child’s legal interests.” T.S.,
192 A.3d at 1092. Additionally, the Court found that in instances where the
child’s preferred outcome is not ascertainable, such as where the child is very
young or is unable to express a preference, there can be no conflict between
the child’s legal and best interests. Id.
In the case at bar, the orphans’ court appointed Attorney Tye Cressman
as Child’s legal counsel and GAL for the termination proceedings, and Attorney
Cressman represented both Child’s legal interests and best interests. Order,
9/7/17, at ¶4. This order conforms with the recommendation of our Supreme
Court in T.S., 192 A.3d at 1090 n.19 (“It would be a better practice for the
court to place an order on the record formalizing the GAL’s role for termination
purposes.”). However, we note that Attorney Cressman’s role was initially
unclear to this Court since the docket, Appellee’s brief’s certificate of service,
and the notes of testimony from the termination hearing list Attorney
Cressman solely as “GAL,” and Attorney Cressman did not file a brief with this
Court.
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At the June 1, 2018 hearing, the orphans’ court asked Attorney
Cressman about his dual role and inquired whether there was any conflict.
N.T., 6/1/18, at 102-104. This inquiry was consistent with our recent en banc
decision in In re: K.R., ___ A.3d ___, 2018 PA Super. 334, at *14 (Pa. Super.
filed December 10, 2018) (“When a child has a preferred outcome that is
ascertainable, counsel representing a child’s legal interests, after appropriate
consultation with the child, should place on the record the child’s preferred
outcome.”). Attorney Cressman stated on the record that he spoke to Child
about her wishes, to the extent it was possible due to Child’s age, and it was
Attorney Cressman’s conclusion that there was no conflict between Child’s
best interests and her legal interests. N.T., 6/1/18, at 102-104. Furthermore,
neither Father nor CYS nor the orphans’ court raised any indication of a
conflict. Therefore, we conclude that Attorney Cressman dutifully represented
Child in both respects, and we discern no conflict between Child’s legal
interests and best interests that would require the appointment of separate
counsel. T.S., 192 A.3d at 1092. In doing so, we reiterate our Supreme
Court’s recommendation that the orphans’ court should formalize counsel’s
role by placing an order on the record, which was done in this case. However,
we add that the record as a whole should clearly reflect counsel’s role, as well
as his or her conclusion as to whether or not a conflict exists between a child’s
best interests and legal interests. Such practices allow the orphans’ court in
the first instance, and the appellate courts subsequently, to discern whether
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a child’s rights were properly protected without scouring the record
inefficiently or remanding the case and prolonging a decision.
On appeal, Father raises the following issues for our consideration:
I. Whether termination of parental rights is improper under 23
Pa.C.S § 2511 when the natural parent has had no actual
knowledge of his child’s dependency and placement.
II. Whether the Trial Court must proceed with an Involuntary
Termination of Parental Rights proceeding filed by the Agency if
notice pursuant to 237 Pa Code 1331 was not obtained in the
dependency action, which gave rise to facts presented by the
Agency and relied on by the Trial Court in the Orphans Court
proceeding.
III. Whether the Trial Court erred by accepting the Agency’s failed
attempts at service of the Adjudication Petition and subsequent
Order to the biological parent to establish constructive notice of
the Agency’s involvement with the child thereby eliminating the
parent’s due process rights and the Agency’s burden to provide
reasonable efforts to reunify the family?
IV. Whether the Trial Court did not properly consider CYS’s failure
to use reasonable efforts by not obtaining and utilizing all of
natural father’s readily available contact information from natural
mother and other sources, i.e. phone number, place of
employment, location of residence.
Father’s Brief at 2-3.6
In his brief, although he mentions Section 2511, Father focuses almost
exclusively on his allegation that he was not provided notice of the
dependency proceedings.7 After review, we conclude that while Father
____________________________________________
6 For purposes of our disposition, we have renumbered Father’s issues.
7 Father does not challenge notice in the instant termination case.
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purports to present four issues on appeal, he has, in fact, presented only two:
1) a largely tangential averment concerning 23 Pa.C.S. § 2511(a)(1); and 2)
his claim that he was not afforded proper notice of the dependency action that
preceded the instant termination petition proceedings.8 We shall address
these claims as two distinct issues.
Our standard of review in cases involving challenges to the involuntary
termination of parental rights is well settled:
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.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted). Moreover:
there are clear reasons for applying an abuse of discretion
standard of review in these cases. We observed that, unlike trial
courts, appellate courts are not equipped to make the fact-specific
determinations on a cold record, where the trial judges are
observing the parties during the relevant hearing and often
presiding over numerous other hearings regarding the child and
parents. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
____________________________________________
8 In an ancillary fashion, Father also mentions in his brief that CYS failed to
provide reasonable efforts to reunify him with Child. This peripheral and
largely undeveloped issue will be addressed in our discussion of Father’s
challenge to notice.
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second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the record
and the court’s legal conclusions are not the result of an error of
law or an abuse of discretion.
In re I.E.P., 87 A.3d 340, 343-344 (Pa. Super. 2014) (quoting In re
Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012)) (internal citations
omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. §§ 2101-2938, governs
termination of parental rights, and it 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). See
also In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en
banc) (the focus in terminating parental rights under Section 2511(a) is on
the parent, but under Section 2511(b), the focus is on the child).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). The
“standard of clear and convincing evidence is defined as testimony that is so
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‘clear, direct, weighty and convincing as to enable the trier of fact to come to
a clear conviction, without hesitance, of the truth of the precise facts in issue.’”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)). Moreover,
this Court may affirm the orphans’ court’s decision regarding the termination
of parental rights with regard to any one subsection of Section 2511(a). In
re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Here, the orphans’ court terminated Father’s parental rights pursuant to
23 Pa.C.S. § 2511(a)(1). Orphans’ Court Opinion, 7/23/18, at 7. Section
2511 provides, in relevant part, 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:
(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.
* * *
(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. § 2511(a)(1), (b).
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As we noted previously, this issue is largely tangential. 9 Father offers
very limited argument specific to Section 2511(a) or (b) and claims only that
he “did not evidence a settled purpose of relinquishing his parental claim to
[Child] at any point in time. Nor has he refused to preform parental duties.”
Father’s Brief at 21. We conclude that Father is entitled to no relief.
The orphans’ court addressed this issue as follows:
The testimony regarding Father’s failure to perform his
parental duties was clear and convincing. Father has worked as
an auto mechanic … since around 2003, and returned to his place
of employment after his latest imprisonment. He never lived with
Mother, who at the time of [Child’s] birth [in September of 2013],
was residing with some other man. Father had suspicions about
Mother’s drug use, but [he] never sought custody. Although he
knew Mother’s address and had her cooperation, he never even
saw [Child] until she was more than a year old, and then, only
through the Mother’s screen door. Only two or three times
thereafter did he have any substantive contact with [Child], the
last instance being in November 2015. The minor never received
any cards or birthday or Christmas presents from him (and did not
recognize him when he appeared at the hearing last November).
Father would not even acknowledge paternity when Mother filed
for child support, thus requiring genetic testing[,] and a contempt
Order was issued on February 2, 2016, for [Father’s] failure to
pay. Father had notice of the dependency proceeding, and at that
time communicated with Mother, and yet did nothing then, or
while subsequently incarcerated, to participate in [Child’s] life. He
has not since sent her letters, cards or presents, or attempted
____________________________________________
9 Because Father provides only general statements of law without reference
to the record or pertinent citations to relevant legal authority, we could
conclude that Father has waived any issues concerning Section 2511(a) and
(b). See In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super. 2017) (concluding
that the appellant waived challenges regarding Sections 2511(a) and (b) by
not including those claims in her statement of questions presented and in
failing to develop an argument). However, because Father has provided a
truncated argument, we decline to find waiver.
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otherwise to communicate with her. He has not provided for her
physical or emotional needs beyond, perhaps, paying a small
portion of the court-ordered support. The termination of
[Father’s] parental rights is thus warranted, and [it] is in the best
interest of [Child], who is now almost five years of age and has
resided with [her foster/pre-adoptive parents] for nearly two
years.
Orphans’ Court Opinion, 7/23/18, at 8-9 (footnotes omitted).
The orphans’ court’s conclusions are supported by the record. For over
six months preceding the filing of the petition for termination of parental
rights, Father evidenced a settled purpose of relinquishing a parental claim to
Child and failed to perform parental duties. 23 Pa.C.S. § 2511(a)(1). Thus,
this issue lacks merit.
With respect to Section 2511(b), the court must determine whether a
bond exists between Father and Child and whether the termination of parental
rights would destroy an existing, necessary, and beneficial relationship. In
re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citation omitted). “In cases
where there is no evidence of any bond between the parent and child, it is
reasonable to infer that no bond exists.” In re K.Z.S., 946 A.2d 753, 762-
763 (Pa. Super. 2008). Herein, Child did not recognize Father and Father had
almost no contact with Child throughout Child’s life. Thus, we discern no bond
between Father and Child, and we find no error or abuse of discretion in the
orphans’ court’s conclusion that terminating Father’s parental rights is both
warranted and in Child’s best interests under 23 Pa.C.S. § 2511(b).
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Turning to Father’s primary challenge on appeal, which concerns his
averment that he was not provided notice of the initial dependency
proceedings, we conclude that no relief is due. The orphans’ court addressed
Father’s challenge to notice as follows:
Father contends in his statement of errors that service of
the dependency petition upon him was improper under Rule
405(c) of the Pennsylvania Rules of Civil Procedure and Rule 1331
of Title 237 of the Pennsylvania Administrative Code. The latter
directs service of the petition upon inter alia [Child’s] guardian by
first class mail and by certified mail, return receipt requested, and
the filing of an affidavit of service prior to the adjudicatory
hearing. See also Pa.R.J.C.P. 1331. A parent is entitled to such
service even if he or she is not the child’s custodial guardian. See
id. Comment. Copies of other documents filed in dependency
proceedings need only be served upon unrepresented parties “by
first class mail addressed to the party’s place of residence.” Id.
1345(B)(2)(d); see also id. 1345(C) (requiring a certificate of
service).
The evidence shows that CYS sent a copy of the dependency
petition to Father by both certified and first class mail to Father’s
post office address, without the latter having been returned, and
with the former signed for by Father.11 An affidavit of service was
filed before the hearing was held. The fact that Father signed the
return receipt after the date originally scheduled for the
adjudicatory hearing is immaterial, particularly as this occurred
eight days before the actual hearing. Father was sent a copy of
the Order of February 9, 2016, rescheduling the hearing, by first
class mail as directed by Rule 1345(B)(2)(d), as well as by
certified mail; and the Clerk of Courts filed a Certificate of Service.
The fact that Father signed this second return receipt after the
hearing had been conducted does not invalidate service upon
him.12
11Father acknowledged his receipt of both mailings at
the termination hearing. Tr., 6/1/18, at 10:11-19,
11:4-7.
12The Court does not understand Father’s allegation
that Pa.R.C.P. No. 405(C) was violated, or how it is
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applicable. That rule requires a signed return receipt
unless “the defendant” refuses to accept service.
Even if the dependency proceedings were flawed and the
adjudication were to be set aside, it was not a prerequisite to CYS
filing its involuntary termination petition.13 See 23 Pa.C.S.A. §§
2512(a)(2) (“A petition to terminate parental rights with respect
to a child under the age of 18 years may be filed by ... an
agency”); 2102 (definition of “agency”); Am. Pet. ¶17.
Furthermore, the removal of [Child] by court order, as referenced
in Sections 2511(a)(5) and (8), did not serve as the basis for
terminating Father’s parental rights.14 Rather, the grounds for
termination were that Father, as also alleged in the petition, “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 [Child] or has refused
or failed to perform [his] parental duties.” 23 Pa.C.S.A. §
2511(a)(1). Father has not, in his statement of errors, challenged
that determination other than to assert that this Court relied upon
facts arising from the dependency proceeding.
13 Consequently, CYS … did not have to “provide
reasonable efforts to reunify the family” in seeking
termination, or “use reasonable efforts” to obtain and
utilize Father’s “readily available contact information,”
as he maintains in his second and third allegations of
error.
14 [Child] was removed from Mother’s care and
custody, not Father’s.
Orphans’ Court Opinion, 7/23/18, at 6-7.
We agree with the orphans’ court’s analysis. Additionally, we agree with
the Agency that Father’s contention concerning notice of the dependency
proceedings is misleading or a “red herring.” CYS’s Brief at 11. Father
provides no authority for the proposition that his challenge to the notice
requirements in the previously filed dependency proceeding is relevant here.
Even if we were to conclude that there was a deficiency in the notice provided
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to Father in the dependency action, which we do not,10 Father’s challenge to
notice during the dependency proceedings has no bearing on the petition to
terminate his parental rights. There is no requirement that a child be
adjudicated dependent prior to the filing of a termination petition under the
Adoption Act.
Moreover, despite Father’s protestations to the contrary,11 CYS was not
required to provide efforts to reunite Father and Child prior to the involuntary
termination of Father’s parental rights. See In re D.C.D., 105 A.3d 662, 672
(Pa. 2014) (stating that Section 2511 does not require that an agency provide
reasonable efforts to reunify a parent with his child prior to the agency
petitioning for termination of parental rights). Father has failed to establish
any error of law or abuse of discretion in the order that terminated his parental
rights to Child.
In sum, we opine that the orphans’ court properly terminated Father’s
parental rights under Section 2511, and Father’s argument concerning notice
of the prior dependency action is specious and warrants no relief. Father’s
challenge to the termination of his parental rights is meritless. Accordingly,
we affirm the June 7, 2018 order.
Order affirmed.
____________________________________________
10See Orphans’ Court Opinion, 7/23/18, at 2-7 (finding that Father received
notice of the dependency proceedings).
11 Father’s Brief at 13, 20.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2019
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