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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: D.M.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: D.B. : No. 1732 WDA 2018
Appeal from the Order Entered October 24, 2018
In the Court of Common Pleas of Westmoreland County
Orphans' Court at No(s): No. 117 of 2018
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED MAY 02, 2019
Appellant, D.B. (“Father”), appeals from the order entered in the
Westmoreland County Court of Common Pleas, Orphans’ Court, which granted
the petition for involuntary termination of his parental rights to his minor child,
D.M.B. (born in April 2013). We affirm.
The relevant facts and procedural history of this case are as follows. On
April 1, 2017, the Westmoreland County Children’s Bureau (“Agency”)
received a referral regarding Child due to deplorable conditions in the home.
Specifically, there were no utilities running, little food, the house was infested
with bed bugs, and Child had access to hypodermic needles. Initially, the
parents avoided communication with the Agency and refused to agree to a
safety plan. On June 16, 2017, Father agreed to participate in a safety plan
and to the Agency’s removal of Child from the home and into Paternal
Grandmother’s care. The court held a shelter care hearing on June 19, 2017,
at which time the court continued Child’s placement with Paternal
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Grandmother.
On July 21, 2017, the court adjudicated Child dependent. The Agency
directed Father, inter alia, to undergo a drug and alcohol evaluation, comply
with random drug screens, participate in parenting classes and life skills
services, and follow recommended treatment. Father failed to take
appropriate steps to arrange for the drug and alcohol evaluation. Additionally,
Father missed numerous drug screens and tested positive for cocaine eight
times. Father attended some supervised visits with Child, but he did not take
advantage of all visits offered. Father has not visited Child since April 2018.
Further, Father did not secure stable and appropriate housing or employment.
The Agency filed a petition for involuntary termination of Father’s
parental rights on August 23, 2018, under 23 Pa.C.S.A. § 2511(a)(8) and (b).
The court held a termination hearing on October 24, 2018, which Father failed
to attend.1 The Agency presented testimony from caseworker Brandi
Schweizer that Child is excelling in the care of Paternal Grandmother, who is
a pre-adoptive resource for Child; Child’s preferred outcome is to live with
Paternal Grandmother; and termination of Father’s parental rights serves
Child’s best interests. (N.T. Termination Hearing, 10/24/18, at 15-16).
Child’s attorney-guardian ad litem (“GAL”) confirmed that termination of
Father’s parental rights serves Child’s best interests. (Id. at 23). By order
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1 Father’s counsel attended the hearing and stated Father was contesting
termination.
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entered that day, with Pa.R.C.P. 236 notice sent to Father on October 25,
2018, the court granted the petition for involuntary termination of Father’s
parental rights to Child.2 Father timely filed a notice of appeal on Monday,
November 26, 2018, along with a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).
Father raises one issue for our review:
WHETHER THE TRIAL COURT ERRED IN FINDING BY CLEAR
AND CONVINCING EVIDENCE THAT THE WESTMORELAND
COUNTY CHILDREN’S BUREAU MET ITS BURDEN, UNDER 23
PA.C.S. § 2511(B), THAT THE BEST INTEREST OF CHILD IS
MET BY TERMINATING FATHER’S PARENTAL RIGHTS WHEN
IT IS NOT CLEAR FROM THE RECORD THAT THE STATUTORY
REQUIREMENTS OF 23 PA.C.S. § 2313(A) WERE MET?
(Father’s Brief at 4).
The standard and scope of review applicable in termination of parental
rights cases are as follows:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent
evidence. Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s decision,
the decree must stand. Where a trial court has granted a
petition to involuntarily terminate parental rights, this Court
must accord the hearing judge’s decision the same
deference that it would give to a jury verdict. We must
employ a broad, comprehensive review of the record in
order to determine whether the trial court’s decision is
supported by competent evidence.
Furthermore, we note that the trial court, as the finder of
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2The court also terminated Mother’s parental rights to Child; Mother is not a
party to this appeal.
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fact, is the sole determiner of the credibility of witnesses
and all conflicts in testimony are to be resolved by the finder
of fact. The burden of proof is on the party seeking
termination to establish by clear and convincing evidence
the existence of grounds for doing so.
The standard of clear and convincing evidence means
testimony that is so clear, direct, weighty, and convincing
as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue.
We may uphold a termination decision if any proper basis
exists for the result reached. If the trial court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even though the record could support an
opposite result.
In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal
denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted).
Father argues the court did not appoint separate legal-interests counsel
for Child for the termination hearing. Father asserts Child was 5½ years old
at the time of the hearing and could articulate a preferred outcome in the
matter. Father contends the record does not disclose whether Child’s GAL
represented Child’s legal interests. Father claims the record fails to indicate
whether Child’s best interests and legal interests were aligned. Father
concludes the court failed to abide by Section 2313(a), and this Court must
remand for the appointment of separate legal-interests counsel for Child and
a new termination hearing.3 We disagree.
Section 2313 of the Domestic Relations Code governs representation of
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3Father does not challenge the court’s termination decision under Section
2511(a)(8) and (b), so we need not discuss it.
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Children in a contested termination proceeding, in pertinent part, 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(a). Our Supreme Court recently interpreted and applied
Section 2313(a) as follows:
[A] majority of the Court agreed on several points: (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 attorney to represent the
child’s legal interests constitutes structural error, meaning
it is not subject to a harmless-error analysis.
In re T.S., ___ Pa. ___, 192 A.3d 1080, 1082 (2018), cert. denied, ___ U.S.
___, 139 S.Ct. 1187 (2019) (summarizing agreed-upon positions of In re
Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172 (2017)) (internal footnotes
omitted). Our Supreme Court has made clear: “The statutory right under
Section 2313(a) belongs to the child, not the parent.” T.S., supra at ___,
192 A.3d at 1087. Thus, “the failure of any party…to affirmatively request
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separate counsel for the children cannot…[constitute] waiver.” Id.
Additionally, the court’s failure to appoint separate legal counsel does
not constitute reversible error, so long as the child is represented by an
attorney-GAL and the record makes clear no conflict exists between the child’s
best interests and legal interests. See, e.g., In re K.R., 200 A.3d 969
(Pa.Super. 2018) (en banc) (holding court’s failure to appoint separate
counsel to represent children’s legal interests did not constitute reversible
error, where attorney-GAL expressed children’s preferences on record and
confirmed no conflict existed between children’s legal and best interests); In
re G.M.S., 193 A.3d 395 (Pa.Super. 2018) (declining to remand for
appointment of separate legal counsel, where expert testified at termination
hearing that she interviewed child who preferred to be adopted by maternal
grandmother; child’s legal interests were aligned with child’s best interests).
Instantly, Father raised the issue concerning appointment of separate
legal counsel for Child for the first time on appeal, but we can review it. See
In re T.S., supra. At the termination hearing on October 24, 2018, Child was
five years old. The record shows the court did not appoint separate legal
counsel for Child for the termination proceeding. The Agency caseworker,
however, expressly stated that Child’s preferred outcome is to live with
Paternal Grandmother. The attorney-GAL confirmed termination of Father’s
parental rights is in Child’s best interests. Thus, Child’s legal interests were
expressed on the record, are aligned with Child’s best interests, and there is
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no reversible error here. See In re K.R., supra; In re G.M.S., supra.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2019
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