Opinion
J-A02036-16 No. 979 MDA 2015 No. 999 MDA 2015
05-17-2016
IN RE: S.A.K., A MINOR APPEAL OF: A.M.K. IN RE: ADOPTION OF: S.A.K. APPEAL OF: A.M.K.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree May 8, 2015 in the Court of Common Pleas of York County Juvenile Division at No(s): CP-67-DP-0000170-2013 Appeal from the Order Entered May 8, 2015 in the Court of Common Pleas of York County Orphans' Court at No(s): 2014-0180 BEFORE: PANELLA, STABILE, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
A.M.K. ("Mother") appeals from the decree and order, dated and entered May 8, 2015, that granted the petition filed by the York County Office of Children, Youth and Families Service ("CYF") seeking to terminate her parental rights to her male child, S.A.K. ("Child"), born in November of 2011, pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). We vacate and remand.
In the same decree entered on May 8, 2015, the trial court also terminated the parental rights of Child's father, D.G. ("Father"). Father has not filed an appeal and is not a party in the present appeal.
We adopt the trial court's factual background and procedural history. See Trial Ct. Op., 5/8/15, at 1-15. Importantly, on December 16, 2014, CYF filed petitions for the involuntary termination of the parental rights of Mother and Father, and for a change of permanency goal to adoption under Section 6351 of the Juvenile Act. In an order dated January 9, 2015, and entered on January 12, 2015, the trial court scheduled a hearing on the petitions to occur on February 20, 2015. On January 14, 2015, CYF filed the affidavit of attempted service of the Act 101 Notice on Mother via United States Postal Service, which was returned as undeliverable. On February 18, 2015, CYF filed the proof of notice required by the Act 101 Notice on Mother, indicating that she refused to sign for receipt of the notice.
On February 20, 2015, the trial court held an evidentiary hearing on the petitions with regard to Father, as Mother had not received the ten days' notice. N.T., 2/20/15, at 10, 15. Mother had only received notice of the petition and hearing on February 18, 2015. Id. at 15. Mother appeared at the February 20th hearing without any counsel to represent her, and she did not waive any defect regarding CYF's service. Id. The trial court scheduled the evidentiary hearing to continue on March 12, 2015, with regard to Mother, but proceeded with the hearing as to Father. Id.
On March 12, 2015, and March 20, 2015, the trial court held the evidentiary hearings on the petitions with regard to Mother. Mother did not have counsel to represent her, and proceeded pro se. Mother arrived late at the March 12th hearing, which had commenced in her absence. When she arrived, the following exchange took place between Mother and the trial court.
THE COURT: [Mother]?N.T., 3/12/15, at 12-13.
[MOTHER]: Yep, I apologize. Your Honor, I would just ask that you show a little bit of leniency. I am learning the process, and I do appreciate that very much.
THE COURT: [Mother], I will provide you with some accommodation given your [sic] self-represented counsel. However, you will be held to the same standards as counsel, as you have chosen to represent yourself in this matter. I may intervene, but I cannot help you present your case. I am not here to represent you, but I do have an obligation to make sure that this matter proceeds in an appropriate manner as are [sic] required by the Rules of Evidence. I need you to compose yourself so you can ask your questions.
[MOTHER]: I'm ready now.
[THE COURT]: Are you ready?
[MOTHER]: Yes.
On May 8, 2015, the trial court entered its final decree and adjudication, involuntarily terminating the parental rights of Mother and Father. On June 8, 2015, Mother, acting pro se, filed notices of appeal, along with concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On September 15, 2015, this Court sua sponte consolidated the appeals. Moreover, on September 15, 2015, this Court remanded the matter to the trial court to appoint counsel to represent Mother on appeal, citing 23 Pa.C.S. § 2313(a.1) and 42 Pa.C.S. § 6337, retained jurisdiction, and extended Mother's time for filing her brief. Mother's appointed counsel then filed a brief on her behalf on November 2, 2015.
In her brief, Mother raises three issues on appeal:
1. Whether the lower court abused its discretion in keeping the goal in the juvenile dependency action as reunification with a parent[?]Mother's Brief at 6.
2. Whether the lower court abused its discretion in the adoption action in involuntarily terminating the parental rights of the mother[?]
3. Whether the lower court abused its discretion in allowing the mother to represent herself in light of her mental health issues affecting her ability to competently represent herself[?]
We first address Mother's third issue, in which Mother argues that it was contradictory for the trial court to allow her to represent herself when one of her goals was to address her mental health issues. Id. at 31. Mother filed her Rule 1925(b) concise statement acting pro se, and did not raise the issue of the trial court's failure to appoint counsel to represent her. If the trial court erred by (1) allowing Mother to proceed pro se, and (2) failing to appoint counsel to represent Mother in the termination hearings as well as to file her notice of appeal and concise statement, she should not be penalized with waiver. Cf. In re X.J., 105 A.3d 1, 4 (Pa. Super. 2014) (stating that "when a party 'was denied [her] right to counsel—or failed to properly waive that right—'" in a termination of parental rights case, "this Court is required to raise this error sua sponte and remand for the" trial court to correct that mistake); see generally Krebs v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in both his or her concise statement of errors complained of on appeal and the Statement of Questions Involved in his or her brief on appeal). We thus decline to find waiver.
Appellees CYF and the guardian ad litem assert that the trial court appointed counsel to represent Mother in the dependency proceedings on August 19, 2013, and that the trial court discharged her appointed counsel on June 23, 2014, at Mother's request. Appellees' Brief at 22. They argue as follows:
In spite of the fact that Mother had knowledge of the procedure and process in order to obtain court appointed counsel, she failed to avail herself of this additional request after the discharge of her court appointed counsel. To allege that it was an error of the [c]ourt to not reappoint an attorney to represent Mother is misplaced and not supported in law. A parent has the opportunity to retain an attorney to represent them in the dependency, as well as termination of parental rights proceedings; however, if a parent does not have the financial resources to retain an attorney privately, a procedure and mechanism exists to make application for a court appointed counsel. The record is silent as to any action taken by the [m]other in this regard after the discharge of her attorney in June 2014.Id. at 22-23.
We respectfully disagree with Appellees. In In re X.J., a panel of this Court addressed a procedural posture that was very similar to the instant appeal. In In re X.J., the juvenile court appointed counsel to represent the mother in dependency proceedings. In re X.J., 105 A.3d at 5. The court then permitted the mother's dependency-proceeding counsel to withdraw; meanwhile, the Lancaster County Children and Youth Social Service Agency's filed a termination-of-parental-rights petition in the orphans' court. Id. at 4-5. The record revealed that the court never appointed counsel to represent the mother in the termination proceedings. Id. at 5-6. The In re X.J. Court explained the issue posed by the absence of appointed counsel for a termination proceedings:
Our review of the record reveals an issue pertaining to [the mother's] lack of representation during the termination proceedings below. The Adoption Act controls termination of parental rights proceedings. See generally 23 Pa.C.S.A. §§ 2511-2513. It provides that a court "shall appoint counsel for a parent whose rights are subject to termination in an involuntary termination proceeding if, upon petition of the parent, the court determines that the parent is unable to pay for counsel or if payment would result in substantial financial hardship." Id. § 2313(a.1); see also In re J.T., 983 A.2d 771, 774 (Pa. Super. 2009) (stating, "an indigent parent in a termination of parental rights case has a constitutional right to counsel . . . [and t]he right to counsel in parental termination cases is the right to effective assistance of counsel even though the case is civil in nature[ ]") (citations omitted). An indigent parent in termination proceedings is likewise entitled to be advised of that right. In re Adoption of R.I., 455 Pa. 29, 312 A.2d 601, 603 (1973). This Court has held that when a party "was denied [her] right to counsel—or failed to properly waive that right—this Court is required to raise this error sua sponte and remand for the PCRA court to
correct that mistake." Commonwealth v. Stossel , 17 A.3d 1286, 1290 (Pa. Super. 2011). In light of the statutory and constitutional right at stake, we conclude the principle enunciated in Stossel is appropriate in termination of parental rights cases.
In In re J.N.F., 887 A.2d 775 (Pa. Super. 2005), this Court held, consistent with the text of Section 2313(a.1), that the parent must request a court-appointed attorney once notified of the requirement to do so. Id. at 780. In that case, this Court concluded that the father, who was incarcerated, was provided with adequate notice that he was required to affirmatively request an attorney.
The appointment of counsel for indigent parents in termination proceedings is controlled by 23 Pa.C.S.A. § 2313(a.1), which states, in pertinent part, the following:
(a.1) PARENT.—The court shall appoint counsel for a parent whose rights are subject to termination in an involuntary termination proceeding if, upon petition of the parent , the court determines that the parent is unable to pay for counsel or if payment would result in substantial financial hardship.
(emphasis added).
In [that] case, the original termination petition contained a notice that stated the following:
You have a right to be represented at the hearing by a lawyer; however, it is not necessary to have a lawyer at this hearing. A court-appointed attorney will be assigned to represent you if you cannot afford legal help. The Family/Orphans' Court Administrator will be present at this hearing. She will give you an application for request of a court-appointed attorney. This attorney will represent you at your [termination hearing]. If you have any questions, contact [the Family/Orphans' Court Administrator].
See Notice, 9/4/2004.
Id. This Court concluded that the orphans' court was not required to appoint counsel because the father did not request court-appointed counsel after he received notice of his right to do so. Id.
However, in this case, [the mother] was not advised of her right to counsel in the termination proceeding. Neither the termination petition, nor the orphans' court's preliminary decree contained any type of notice provision described in In re J.N.F. Furthermore, the certified record does not contain any indication that [the mother] was served with any of the filings in the termination proceedings below, except for the final termination decree that is the subject of this appeal. Since [the mother] was never notified of the proceedings against her, her right to counsel, or of her obligation to request the same, we deem the certified record's silence on [the mother's] application for counsel immaterial for the purposes of this appeal. Based on these considerations, we conclude that In re J.N.F. does not present an impediment to our decision in this case.
* * *
Furthermore, our review of the record reveals there were no orders appointing counsel for [the mother] for the purposes of the termination proceedings, nor evidence of any notice to [the mother] of her right to counsel.
Thus, the certified record reveals that [the mother] did not receive counsel for the purposes of termination proceedings, even though she was entitled to representation. See , e.g., Stossel , supra ; In re J.T., supra. Nor does the record indicate that [the mother] was ever advised of her right to counsel for termination proceedings. See In re Adoption of R.I., supra. Therefore, we believe the best course of action is to remand this case for a new termination hearing, before which the orphans' court shall advise [the mother] of her counsel rights, appoint counsel for [the mother], or
affirmatively determine that [the mother] does not qualify for counsel.In re X.J., 105 A.3d at 4-7.
Based on the foregoing, we conclude that [the mother's] right to counsel was violated in the termination proceedings below. Accordingly, counsel's petition to withdraw is denied, the orphans' court's April 21, 2014 decree is vacated, and the case is remanded for further proceedings, consistent with this opinion.
In the instant appeal, identical to In re X.J., our review of the record reveals there were no orders appointing counsel for Mother for the purposes of the termination proceedings, and there is no any evidence of any notice to Mother of her right to counsel. See id. Neither the termination petition, nor the notice of hearing, nor any other record document set forth the provision regarding Mother's right to counsel as provided in Section 2313(a.1) of the Adoption Act. See id. Thus, the certified record reveals that Mother did not have appointed counsel for the purposes of termination proceedings, even though she was entitled to representation. See id. (citing Stossel , 17 A.3d at 1290; In re J.N.F., 887 A.2d at 780). The record also does not indicate that Mother was ever advised of her right to counsel for termination proceedings. See id. (citing, In re Adoption of R.I., 312 A.2d at 603). Accordingly, we conclude that Mother was deprived of her right to counsel in the termination proceedings. See id. at 7. Thus, we remand this case for a new termination hearing, before which the orphans' court shall advise Mother of her counsel rights, appoint counsel for Mother, or affirmatively determine that Mother does not qualify for counsel. See id.
In light of our resolution of this matter, we do not address Mother's remaining issues. --------
Decree vacated. Case remanded with instructions as set forth above. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/17/2016
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