J-S27043-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: M.C.Q. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.M-Q., BIOLOGICAL :
MOTHER :
:
:
:
: No. 276 WDA 2019
Appeal from the Order Entered January 16, 2019
In the Court of Common Pleas of Clearfield County Orphans’ Court at
No(s): O.C. No. 3413-2017
IN RE: ADOPTION OF: M.D.Q. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.M.-Q., BIOLOGICAL :
MOTHER :
:
:
:
: No. 277 WDA 2019
Appeal from the Order Entered January 16, 2019
In the Court of Common Pleas of Clearfield County Orphans’ Court at
No(s): 3412-2017
BEFORE: OLSON, J., OTT, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED MAY 22, 2019
In these consolidated appeals, Appellant, A.M.-Q. (“Mother”), appeals
from the orders entered January 16, 2019, that terminated her parental rights
to her children, M.D.Q., born 2011, and M.C.Q., born 2009 (collectively,
“Children”). We affirm.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S27043-19
The factual and procedural history of this action was previously
summarized by this Court as follows:
Mother and [C.Q. (“Father”)] were once married. Following their
separation and divorce, Father exercised primary physical custody
of Children, while Mother exercised partial physical custody. The
parties shared legal custody of Children. Mother last saw the
Children during a visit in September 2016. Mother was
incarcerated later that month for reasons not specified in the
record. She was released to a halfway house in April 2017, but
absconded in May 2017. Mother had no contact with Children
while incarcerated or following her release.
Father began dating [A.Q. (“Stepmother”)] in approximately
2014, and they married in 2016. [Father and Stepmother
(collectively, “Petitioners”)] reside together with Children, two of
Stepmother’s children from a previous relationship, and with their
own biological child. On May 1, 2017, after seven months of no
contact from Mother, Petitioners filed petitions to terminate her
parental rights involuntarily.
The orphans’ court conducted a termination hearing on
November 3, 2017. During the hearing, Petitioners and Mother
appeared, represented by counsel. The court also appointed
Courtney L. Kubista, Esquire, to represent Children.1 At the
conclusion of the hearing, the court directed the parties to submit
letter briefs arguing their respective positions. Thereafter, on
January 16, 2018, the court entered the order complained of on
appeal, in which it terminated Mother’s parental rights to Children
involuntarily. Mother timely filed notices of appeal on
February 14, 2018, along with concise statements of errors
complained of on appeal.
1 The order appointing Attorney Kubista specified that she
would serve as “Attorney for the Children.” Thus, this is not
a case where Children were represented by a guardian ad
litem tasked with representing their non-conflicting legal
and best interests.
In re Adoption of M.D.Q., 192 A.3d 1201, 1202-03 (Pa. Super. 2018)
(citations to the record omitted).
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On July 6, 2018, this Court vacated the termination orders without
prejudice and remanded for further proceedings. Id. at 1202. Before
addressing the merits of Mother’s appeal, this Court raised an issue sua sponte
as to “whether Children’s counsel provided adequate representation of their
legal interests during this proceeding.” Id. at 1203. This Court explained:
The [Adoption] Act provides 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).
The term “counsel” in 23 Pa.C.S. § 2313(a) refers to an attorney
representing the child’s legal interests who is directed by the child.
. . . [A] child’s legal interests are distinct from his or her best
interests. A child’s legal interests are synonymous with his or her
preferred outcome, while a child’s best interests must be
determined by the trial court. . . .
In [In re Adoption of T.M.L.M., 184 A.3d 585, 590-91 (Pa.
Super. 2018)], the child was just under six years old at the time
of the hearings to terminate his mother’s parental rights.
However, the attorney appointed to represent the child did not
attempt to interview him and did not set forth his preferred
outcome on the record. Id. at 589–91. The child’s attorney did
not advocate for his legal interests during the hearings, and
instead focused solely on his best interests. Id. Moreover, she
did not file a brief in this Court, nor did she join a brief filed by
another party. Id. at 590-91.
This Court concluded that the child had been deprived of his
statutory right to counsel. We reasoned as follows:
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At the time of the hearings, Child was just shy of six years
old. While Child may not have been old enough to
participate actively in [the attorney’s] representation of
him, it is not unlikely that Child has feelings one way or
another about his mother and his permanency. Like adult
clients, effective representation of a child requires, at a bare
minimum, attempting to ascertain the client’s position and
advocating in a manner designed to effectuate that position.
It may be that Child’s preferred outcome in this case is
synonymous with his best interests. It may be that Child
wants no contact with Mother. Child may be unable to
articulate a clear position or have mixed feelings about the
matter. Furthermore, termination of Mother’s rights may
still be appropriate even if Child prefers a different outcome.
However, it is clear that where a court appoints an attorney
ostensibly as counsel, but the attorney never attempts to
ascertain the client’s position directly and advocates solely
for the child’s best interests, the child has been deprived
impermissibly of his statutory right to counsel serving his
legal interests.
Id. at 590-91 (citation omitted).
Id. at 1203-04 (some citations omitted) (some formatting).
Returning to the current appeal, this Court concluded:
[W]e have no basis to conclude that Children were provided with
counsel who represented their legal interests and took direction
from Children to the extent possible due to their ages. . . . Because
of these deficiencies, we must vacate the order terminating
Mother’s parental rights involuntarily, and remand for counsel to
conduct an additional interview of Children to discern their legal
interests directly. Once Attorney Kubista has done so, she must
notify the orphans’ court. If Children’s express preferred
outcomes are consistent with the result of the prior proceeding,
or if Children are unable or unwilling to articulate a clear preferred
outcome, the court may reenter its January 16, 2018 order. If the
Children’s preferred outcomes are inconsistent with the result of
the prior proceeding, the court must conduct a new termination
hearing, with counsel actively advocating for their legal interests.
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Id. at 1205-06 (footnote omitted). This Court did not provide any timeframe
in which Attorney Kubista or the orphans’ court must comply with its directive.
See generally id.
Pursuant to this Court’s opinion, Attorney Kubista sent a letter to the
orphans’ court on December 31, 2018, stating:
I have conducted additional interviews as well as telephone
conferences with the minor children . . .
As per my interviews and telephone conferences, the children’s
positions are consistent with the original result of the termination
proceeding held on November 3, 2017. The minor children were
very clear with their positions in regard to the termination of
Mother’s rights in this matter. The children are adamant that they
wish for their Mother’s rights to be terminated and reemphasized
how Mother has not been in their lives for an extended period of
time.
I would request as legal counsel for the children in this matter,
that Your Honorable Court reenter its January 16, 2018 Order.
Letter from Courtney L. Kubista to the Honorable Paul E. Cherry
(December 31, 2018).
On January 16, 2019, the orphans’ court entered an order stating that
it had received Attorney Kubista’s letter and, upon consideration thereof, “is
satisfied that the children’s express preferred outcomes are consistent with
the findings of the prior proceeding;” accordingly, the orphans’ court
reentered its order dated January 16, 2018, involuntarily terminating Mother’s
parental rights to Children. Order, 1/16/2019.
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As Attorney Kubista and the orphans’ court have satisfied this Court’s
instructions, we will now address the merits of Mother’s appeal. See M.D.Q.,
192 A.3d at 1202-06.
Mother now presents the following issues for our review:
ISSUE I
Did the trial court err in determining that Father/Step-mother
presented clear and convincing evidence that grounds for
involuntary termination exist?
ISSUE II
Did the trial court err in determining that involuntary termination
of Mother’s parental rights are in the best interest of the Children?
ISSUE III
Did the trial court err by permitting testimony regarding Mother
absconding after the date of filing of the petition for involuntary
termination but denying Mother the ability to testify to events
after the date of filing the petition for involuntary termination?
ISSUE IV
Did the trial court fail to properly consider Mother’s periods of
custody with the minor Children immediately preceding her
incarceration?
ISSUE V
Did the attorney for the [C]hild[ren] err by not interviewing the
Child[ren] for excess of five (5) months despite an order of court
directing an additional interview be completed?
ISSUE VI
Did the trial court err by relying on additional information supplied
by the attorney for the [C]hild[ren] after a significant time delay
took place?
Mother’s Brief at 4-5 (suggested answers and unnecessary capitalization
omitted).
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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 we 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.
The standard of clear and convincing evidence is defined as
testimony that is so 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.
The trial court is free to believe all, part, or none of the evidence
presented and is likewise free to make all credibility
determinations and resolve conflicts in the evidence. If competent
evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result.
In re B.J.Z., 2019 PA Super 106, *9-*10 (filed April 4, 2019) (internal
quotation marks and some internal citations omitted) (some formatting).
Mother contends that the orphans’ court abused its discretion by
terminating her parental rights. Mother’s Brief at 11-16.1 Although she
____________________________________________
1Despite only listing six issues in her statement of questions involved pursuant
to Pa.R.A.P. 2116, Mother divides the “Argument” section of her brief to this
Court into four subsections, hence violating Pa.R.A.P. 2119(a), which
mandates that “argument shall be divided into as many parts as there are
questions to be argued.”
The briefing requirements scrupulously delineated in our appellate
rules are not mere trifling matters of stylistic preference; rather,
they represent a studied determination by our Court and its rules
committee of the most efficacious manner by which appellate
review may be conducted so that a litigant’s right to judicial review
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acknowledges that her “last physical contact with [C]hildren was in September
of 2016, immediately preceding her incarceration[,]” she argues that she “has
begun searching for housing that would be appropriate for” Children, “knows
she suffers from addiction[,] and is working on it as [C]hildren are what she
must fight for.” Id. at 12, 16 (citations omitted).
The trial court terminated Mother’s parental rights pursuant to 23
Pa.C.S. § 2511(a)(1) and (b). Requests to have a natural parent’s parental
rights terminated are governed by 23 Pa.C.S.§ 2511, which provides, in
pertinent part:
(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 right 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
____________________________________________
as guaranteed by Article V, Section 9 of our Commonwealth’s
Constitution may be properly exercised.
Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011).
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efforts by the parent to remedy the condition 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).
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 G.M.S., 193 A.3d 395, 401 (Pa. Super. 2018) (citation omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Paul E. Cherry,
we conclude Mother’s first two issues merit no relief. The orphans’ court
opinion comprehensively discusses and properly disposes of those questions.
See Orphans’ Court Opinion, filed January 16, 2019, at 3–5 (finding for (a)(1):
prior to her incarceration in September 2016, Mother sporadically exercised
her periods of partial custody with Children; however, upon her incarceration,
she never contacted Children, Father, Stepmother, or any other person who
could convey letters or messages to Children; Mother made no attempt to
contact Children after her release from prison in April 2017; Mother failed to
perform any parental duties or to provide any financial support for Children
since July 2016 at the latest, despite having shared legal custody; Petitioners
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thus have adequately shown that Mother’s conduct satisfies the statutory
grounds for termination according to § 2511(a)(1)) (finding for (b): Children
consider Petitioners to be their parents; Children were not interested in Mother
and had not seen her in some time; Mother and Children share no emotional
bond; it is in Children’s best interests to terminate Mother’s parental rights).
Our only addition is that Mother’s claims that she will eventually obtain
appropriate housing and “is working on” her addiction are unpersuasive and
inadequate to preserve her parental rights. Mother’s Brief at 16. “Parental
rights are not preserved by waiting for a more suitable or convenient time to
perform one’s parental responsibilities while others provide the child with his
or her physical and emotional needs.” In the Interest of K.Z.S., 946 A.2d
753, 759 (Pa. Super. 2008) (citation omitted).
As for Mother’s remaining challenges, her claims that the orphans’ court
“erred by permitting testimony regarding Mother absconding after the date of
filing of the petition for involuntary termination but denying Mother the ability
to testify to events after the date of filing the petition for involuntary
termination” and erred by failing “properly” to “consider Mother’s periods of
custody prior to incarceration” merit no relief. Mother’s Brief at 11, 16.
Mother’s incarceration began in September 2016. M.D.Q., 192 A.3d at
1202. The termination petitions were filed on May 1, 2017 – seven months
later. Id. at 1203. Consequently, the six months required by 23 Pa.C.S.
§ 2511(a)(1) had elapsed, and the “events after the date of filing the petition
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for involuntary termination” and “Mother’s periods of custody prior to
incarceration[,]” Mother’s Brief at 11, 16, were irrelevant to this requisite
calculation of time for Subsection 2511(a)(1).
To the extent that Mother is arguing that “events after the date of filing
the petition for involuntary termination” were relevant to 23 Pa.C.S.
§ 2511(b), that subsection explicitly states: “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 condition described therein which are
first initiated subsequent to the giving of notice of the filing of the
petition” (emphasis added). Ergo, no testimony provided by Mother about
her actions after the filing of the termination petition on May 1, 2017, could
be considered as part of the Subsection 2511(b) analysis.
Finally, Mother urges this Court to find that an error “occur[red] when
the attorney for the Children did not interview the Children and respond to the
court for an excess of five (5) months” and “the trial court . . . relied on a
letter without inquiry as to the delay.” Mother’s Brief at 18. Although Mother
is correct that over five months passed between this Court’s decision on July 6,
2018, and Attorney Kubista’s letter dated December 31, 2018, this Court did
not provide a timeframe for completion of counsel’s additional interviews with
Children to discern their legal interests. See M.D.Q., 192 A.3d at 1205-06.
Mother provides us with no case law – and we are aware of none – that counsel
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must complete this Court’s instructions on remand within a specific timeframe
unless such a timeline is explicitly stated in the remanding decision.2
Based on the foregoing, we conclude the orphans’ court did not abuse
its discretion by terminating Mother’s parental rights to Children. See B.J.Z.,
2019 PA Super 106, *9-*10. Accordingly, we affirm, partially on the basis of
the trial court’s opinion. The parties are instructed to attach the opinion of
the trial court to any filings referencing this Court’s decision.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2019
____________________________________________
2 In Children’s brief to this Court, Attorney Kubista states that her first
interview with Children after receiving this Court’s memorandum was on
August 1, 2018. Children’s Brief at 21. She continues that she “had additional
questions for” Father after that initial interview with Children and that any
further delay was beyond her control, as “Father missed several conferences
which were all made known to his legal counsel through various telephone
calls and letters.” Id. at 11, 21. She concludes that she “directly spoke to
Mother’s legal counsel and advised her that the delay was due to missed office
appointments which she failed to acknowledge in her brief.” Id. at 22.
There is no indication that any of the above information was made part of the
certified record of the orphans’ court or that the orphans’ court was otherwise
aware of it. We may not thereby consider Attorney Kubista’s assertions in
Children’s Brief, albeit that we have no reason to doubt their veracity. See
Official Note to Pa.R.A.P. 1921 (“An appellate court may consider only the
facts which have been duly certified in the record on appeal.”)
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OPINION and ORDER
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Penns:; l ·,inn; G
I /. Background and Procedural History
I
I On May I, 2017, a Petition for Involuntary Termination of Parental Rights of P.
M -Q · ["Mother"] was filed by Petitioners, C Q l"Father"'J,
and his wife, A. Q ["Stepmother"). Father and Mother are the parents of minor
I' children, M· .D Q ,DOB /2011, and M c. Q DOB 2009.
I
[''Children"] who are the subject of the Petition.
!I The Petition, which is presently before the Court, requests that the Court terminate the
11 parental rights of Mother with respect to the Children. In support of this request, Petitioners
11 allege that Father currently has primary physical custody of the Children, that Mother has had
I
11
no contact with the Children since September of 2016, and that Mother has refused and has
failed to perform her parental duties in regards to the Children for a period of at least six ( 6)
11
months prior to the filing of the Petition, evidencing a settled purpose of relinquishing her
parental claim to the Children.
By way of background, Mother and Father were married at the time of birth for each
!1
,I child, and ultimately divorced in February of 2016. Following several custody tilings by the
parties and Paternal Grandparents, a Custody Consent Order was entered into with Mother,
I Father, and Paternal Grandparents on May 26, 2016, with all parties sharing legal custody of
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the Children, Father maintaining primary physical custody, and Mother having periods of
partial custody.
The partiesfollowed the Custody Order until Septemberof2016, when Mother was
incarcerated in the Clinton County Jail and the State Correctional Institution at Muncy ["SCI
Muncy"]. Mother was subsequently released from SCI Muncy on April lJ, 2017 and sent to
live in a halfway house, from which she absconded in May of2017 and was not located until
the summer. Mother made no contact with the Children during her time ofincarceration or
after.
On November 3, 2017, a hearing was held before the Court regarding the Petition.
Following said hearing, the Court ordered the parties to submit briefs in support of their
· respective positions. Being in receipt of said briefs, the Court is now prepared to rule on the
matter.
I II. Analysis
! Pursuant to 23 Pa. C.S .A. § 2511 and Pennsylvania case law, the court must engage in a
l bifurcated process prior to terminating parental rights. Initially, the focus is on the conduct of
I
I
]
I
the parent. The party seeking termination must prove by clear and convincing evidence that
I I
the parent's conduct satisfies the statutory grounds for termination as delineated in 23
Pa.C.S.A. § 2511. 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; the
determination of the needs and welfare of the child under the best interests of the child
I
standard. One major aspect of the needs and welfare analysis concerns the nature and status of
I the emotional bond between parent and child, with dose attention paid to the effect on the
II
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child of permanently severing any such bond. In re L.M, 923 A.2d 505, 511 (Pa. Super. CL
2007)( citing In re R.JS., 901 A.2d 502, 507 (Pa. Super. Ct. 2006)),
In the present matter, Petitioners seek termination of Mother's parental rights pursuant
to 23 Pa.CS.A. § 251 l(a)(l), which states, "[t'[he parent by conduct continuing for a period of
at least six months immediately preceding the filing of the petition either had evidenced a
settled purpose of relinquishing parental claim to a child or has refused or failed to perform
parental duties." It is acknowledged by all parties that prior to Mother's incarceration she
sporadically exercised her periods of partial custody with the Children. However, upon her
incarceration, Mother did not once make contact with the Children; Father, Stepmother, or any
other person who could convey letters or messages to the Children. Mother testified in the
hearing that she sent letters to the children multiple times a week while incarcerated.
However, Mother never produced evidence to show this to be true, and Father and Stepmother
both testified that they never received any mail for the Children during Mother's incarceration.
Testimony was provided to show that Father, Stepmother, and Paternal Grandmother all
maintained the same addresses and phone numbers during the time of Mother's incarceration
I and absence. The parties presented conflicting testimony as to whether Mother attempted to
contact the Children by phone while she was incarcerated. As proof, Mother provided a call
log to show that Father had blocked her from calling him on his cell phone. However, upon
inspection of the log, it was determined that Mother was calling an incorrect number. Thus,
the fault for the Children never receiving a call from Mother falls squarely on her. What.is
most telling to this Court about Mother's intentions is that Mother acknowledged that she
made no attempt to contact the Children after her release from prison, when she would have
had the greatest means for doing so. Instead, she absconded from the halfway house in which
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she was required to live, and was on the run for several months. These actions clearly indicate
to this Court that Mother is willing to put her own interests before the need to maintain a
relationship with her Children.
Testimony also shows that Mother has failed to perform any parental duties with
respect to the Children, or provide any financial support since June or July of 2016, despite
having shared legal custody. Thus, Father and Stepmother have been the primary supporters
of the Children's mental, emotional, and financial needs. Upon consideration of the testimony
as provided by both parties, this Court has determined that Father and Stepmother have
adequately shown that Mother's conduct satisfies the statutory grounds for termination as
delineated in 23 Pa.C.S.A. § 2511.
When the Court finds a parent's conduct warrants termination of his or her parental
rights, the Court must then engage in the second part of the analysis, considering the needs
and welfare of the child applying a best interests of the child standard. In her brief, Counsel
for the Children stated that she spoke with the Children to discuss their positions on the
termination. Itis clear from Counsel's summary of the conversations that the Childrenboth
see their Stepmother as fulfilling the motherly role in their lives. The Children did not seem
as concerned with discussing their Mother, whom they acknowledged they had not seen in
some time. It appears to this Court that the Children's needs are being sufficiently metby
Father and Stepmother, and that termination of Mother's rights would have no great impact on
the Children at this time or in the future, as they seem to share no emotional bond.
Alternatively, allowing Mother to contin:ue to enter and exit the Children's lives on her whim
is likely to confuse and detrimentally impact the Children's emotional needs. Therefore, this
4
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Court has determined that itis in the Children's best interest to terminate Mother's parental
.
,11. rights.
For this reason and the others stated herein, the Court enters the following:
I
I
I.l ORDER
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Ii AND NOW; this 16th day of January, 2018, upon consideration of the Petition for
!I
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Involuntary Termination of Parental Rights of Mother, the well-reasoned briefs of the parties
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in support of their respective positions, and a hearing on the same, it is the ORDER of this
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Court that said Petition be and is hereby GRANTED. Accordingly, the parental rights of
lI A M, -Qi with respect to minor children, M -- D � Q• DOB
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/2011, and .M c Q: DOB, /2009, shall be are hereby TERMINATED.
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