In Re: Adoption of K.H., A Minor, Appeal of G.H.

Superior Court of Pennsylvania·Decided June 11, 2018·No. 1807 WDA 2017·Unpublished

Opinion

J-S25030-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF K.H., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: G.H., NATURAL FATHER : : : : : : No. 1807 WDA 2017

Appeal from the Order Entered September 5, 2017 In the Court of Common Pleas of Butler County Orphans' Court at No(s): O.A. 17 of 2017

BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J. FILED JUNE 11, 2018

G.H. (“Father”)—a registered sex offender—appeals the order entered

September 5, 2017, in the Court of Common Pleas of Butler County, which

involuntarily terminated his parental rights to his daughter, K.H. (“Child”)

(born November 2007), pursuant to 23 Pa.C.S.A. § 2511(a)(5), (11), and (b)

of the Adoption Act, 23 Pa.C.S.A. §§ 2101–2938. We affirm.

We summarize the relevant factual and procedural history of this matter

as follows. The orphans’ court adjudicated Child dependent in January 2016.

Shortly before that adjudication, Child’s female half-sibling made allegations

against Father that he had sexually abused her. Child then became known to

the Butler County Children and Youth Agency (“Agency”) and was removed

from the parental home when Child’s birth mother, P.H. (“Mother”), left Child

with an inappropriate caregiver. On April 4, 2017, the Agency filed a petition

for involuntary termination of Father’s parental rights. The orphans’ court J-S25030-18

appointed Susan B. Lope, Esquire, as “Counsel or Guardian Ad Litem” for

Child. It is apparent from the record that Attorney Lope acted as Child’s legal

counsel and not as her guardian ad litem.1

Ultimately, the orphans’ court held a hearing on the Agency’s petition

for involuntary termination of Father’s parental rights.2 At the hearing, Father

was incarcerated because of his guilty pleas to statutory sexual assault and

involuntary deviate sexual intercourse. Father did not appear at the hearing

and did not request the appointment of counsel prior to the hearing. At the

hearing, Attorney David Montgomery represented the Agency. Attorney Lope

____________________________________________

1 Although the order does not indicate whether Attorney Lope is to act as counsel or as guardian ad litem, the following discussion at the hearing makes it apparent that Attorney Lope acted as counsel for Child:

THE COURT: Ms. Lope, as counsel for Child, do you have anything you want to put on the record today?

MS. LOPE: I don’t. I support termination, both the confirmation of Mom and termination of Dad’s rights under the current circumstances.

N.T., Termination Hearing, 8/4/17, at 19.

Further, on appeal, Attorney Lope, as counsel for Child, filed a joint brief for appellees with the Agency.

2 Mother executed an adoption consent prior to the hearing. The orphans’ court later conducted the hearing on the Agency’s petition to confirm consent to adoption. The record indicates that the orphans’ court “would be accepting and adopting the consent,” but would “hold that and take that under advisement until we have concluded with [Father’s] portion of the case.” N.T., Termination Hearing, 8/4/17, at 9. The outcome of the petition to confirm consent to adoption is not apparent from the certified record.

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attended the hearing as counsel for Child. The Agency called one witness,

caseworker Tiffany Crotzer. The orphans’ court terminated the parental rights

of Father to Child.

On October 11, 2017, the clerk of orphans’ court received a notice of

appeal mailed by Father as well as a motion for appointment of counsel. The

orphans’ court then issued an order requiring Father to provide proof of the

date he deposited his notice of appeal in the prison mail system. In response,

Father provided a cash slip indicating he placed his notice of appeal into the

prison mail system on October 6, 2017. The orphans’ court determined that

the order terminating Father’s rights was mailed to him on September 8, 2017,

and that the notice of appeal was deposited with prison officials on October 6,

2017. This timeline, which is supported by the record, renders Father’s appeal

timely pursuant to the “prisoner mailbox rule.”

The orphans’ court issued an order appointing counsel for Father and

also ordered Father to file a concise statement of errors complained of on

appeal. Father filed a timely pro se concise statement of errors complained of

on appeal and counsel for Father also filed a concise statement of errors

complained of on appeal raising additional matters, 3 which we will consider,

3 Father failed to file a concise statement of errors complained of on appeal with his notice of appeal. See Pa.R.A.P. 905. As neither the Agency nor Child assert prejudice from Father’s failure to file a concise statement with his notice of appeal, and Father complied with the orphans’ court’s order to file a concise

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as no party asserts prejudice from its untimely filing. See In re K.T.E.L., 983

A.2d 745, 747-748 (Pa. Super. 2009).

On appeal, Father raises the following issues:

1. Whether the trial court committed an abuse of discretion and an error of law in proceeding with the hearing to terminate Appellant’s parental rights to the Child without Appellant having the benefit of being represented by counsel, thereby violating his due process rights?

2. Whether the trial court committed an error of law in finding that the moving party met their burden of proof pursuant 23 Pa.C.S.A. § 2511(a) and, based on that finding, erred in terminating Appellant’s parental rights to the Child?

3. Whether the trial court erred when it failed to make findings of fact as to the nature and strength of the bond and relationship of the Child with the parents or guardian?

4. Whether the trial court erred when it failed to conduct an analysis of its findings pursuant to 23 Pa.C.S.A. § 2511(b) regarding the best interests of the Child, taking into primary consideration the developmental, physical, and emotional needs of the Child?

Father’s Brief, at 10.

We review an appeal from the termination of parental rights with the

following standard:

[A]ppellate courts must apply an abuse of discretion standard when considering a trial court’s determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court 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 ____________________________________________

statement, we do not find his issues waived. See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (holding that there is no per se rule mandating quashal or dismissal of a defective notice of appeal in children’s fast track cases).

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supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.

[T]here are clear reasons for applying an abuse of discretion standard of review in these cases.

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In Re: Adoption of K.H., A Minor, Appeal of G.H., (Pa. Ct. App. 2018).

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