In re Involuntary Termination of Parental Rights Concerning E.F.H.

751 A.2d 1186, 2000 Pa. Super. 139, 2000 Pa. Super. LEXIS 632
CourtSuperior Court of Pennsylvania
DecidedMay 3, 2000
StatusPublished
Cited by17 cases

This text of 751 A.2d 1186 (In re Involuntary Termination of Parental Rights Concerning E.F.H.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Involuntary Termination of Parental Rights Concerning E.F.H., 751 A.2d 1186, 2000 Pa. Super. 139, 2000 Pa. Super. LEXIS 632 (Pa. Ct. App. 2000).

Opinion

BROSKY, J.

¶ 1 Appellant L.V.H.M. is the natural mother of a child, E.F.H., who sought an involuntary termination of the parental rights of the child’s natural father, T.A.H., so that L.V.H.M.’s husband, G.L.M., could adopt the child. The trial court dismissed the petition for adoption, including the involuntary termination request. The trial court found that the petitioners, L.V.H.M. and G.L.M., met their burden of proof to show that the respondent had failed to perform parental duties under 23 Pa. C.S.A. § 2511(a)(1). However, considering 23 Pa.C.S.A. § 2511(b), the trial court found that the evidence was not clear and convincing that the termination of T.A.H.’s parental rights and the child’s adoption by her stepfather would promote her needs and welfare, especially her emotional well being.1

¶ 2 L.V.H.M raises only one question for this Court’s review: whether the trial court’s failure to appoint counsel for a child in a contested proceeding for involuntary termination of parental rights and adoption, as mandated by 23 Pa.C.S.A. § 2313(a), was error requiring the appointment of such counsel and a new trial? For the reasons that follow, we find that the court committed reversible error. Accordingly, we vacate the trial court’s order and remand the matter.

[1188]*1188¶ 3 Section 2318 of the' Adoption Act provides in pertinent part as follows:

(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.... No attorney or law firm shall represent both the child and the adopting parents.

23 Pa.C.S.A. § 2313(a).

¶ 4 It is clear that in the present case, in which the child’s natural father, T.A.H., was contesting the involuntary termination proceedings, the trial court did not appoint counsel as required. L.V.H.M. cites In re Adoption of N.A.G. and A.B.G., Appeal of B.G., 324 Pa.Super. 345, 471 A.2d 871 (1984), in which this Court held that the trial court’s failure to appoint a child advocate, pre-hearing, was harmless error, and asserts that the instant matter is distinguishable. Relying on In re M.T., R.T., & H.T., Appeal of L.T., 414 Pa.Super. 372, 607 A.2d 271 (1992), T.A.H. counters that L.V.H.M. has waived our consideration of this issue by her failure to raise it before the trial court.

¶ 5 In N.A.G, a natural father of two children appealed from a final decree terminating his parental rights. From the testimony at the proceedings, the trial court found clear and convincing evidence sufficient for a trier of fact to conclude that the father had failed to perform his parental duties for ten years. However, the trial court had not appointed counsel to represent the children as mandated by 23 Pa.C.S.A. § 2313(a). The trial court mistakenly believed that the appointment of counsel was a discretionary matter.

¶ 6 When the father made a request early in the hearings for the court to appoint counsel to represent the children, the trial court denied the request. Later, after the hearings were completed, the father filed exceptions to the decree. The trial court realized its error, appointed counsel to represent the children, and directed appointed counsel to review the record, interview the children, and conduct an investigation. It was the recommendation of the appointed counsel that the parental rights should be terminated. The trial court then' dismissed the father’s exceptions and entered a final decree.

¶ 7 Upon an appeal by the father, this Court in N.A.G. stated the following:

This was contrary to the statute’s procedural mandate. The purpose of the statutory requirement, however, was not to create a right in [the] appellant. It was not intended to benefit a contesting parent or parents or to enhance by force of numbers the position of a contesting adult.2 Its purpose, rather, was to guarantee that the needs and welfare of the children would be advanced actively by an advocate whose loyalty was owed exclusively to them. In the instant case, the children and their belatedly appointed counsel are satisfied with the court’s decree.[Although the rule requires appointment of counsel for a child at as early a point in the proceedings as feasible, the court’s failure to make a pre-hearing appointment in the instant case was harmless. The children are now represented by counsel who has acted to protect their interests. We perceive no valid purpose to be served by remanding for a new hearing which can serve no substantive purpose. •

[1189]*1189N.A.G., 471 A.2d at 874-75 (footnote in original).

¶ 8 M.T. was an appeal by a mother of three children, L.T., who was contesting the trial court’s involuntary termination of her parental rights. L.T. raised a number of issues on appeal. Before turning to the issues on appeal, this Court noted that the trial court had appointed counsel to represent the children in the proceedings and commented that the advocacy of that counsel left much to be desired. Citing Pa. R.A.P. 302(a), the panel engaged in a discussion of whether the issues raised by the mother in her appeal had to be previously raised in order to preserve them for our review. We determined that, under the circumstances, the mother had sufficiently preserved her claims. Addressing the merits of the appeal in M.T., this Court found that the Chancellor’s findings were supported by clear and convincing evidence; that the requisites for termination were established; and that the needs and welfare of the children would be best served by termination.

¶ 9 In addressing whether the issues raised on appeal had been properly preserved, the panel in M.T. noted the conflict that existed concerning whether post-trial motions had to be filed in cases involving an involuntary termination decree. The panel ruled, however, that a resolution of that question was not necessary because exceptions had been filed raising the issues, the issues were raised in the Statement of Matters Complained of on Appeal, pursuant to Pa.R.A.P.1925(b), and the trial court had addressed the issues in its opinion.

¶ 10 Recently, in In re J.J.F., 729 A.2d 79 (Pa.Super.1999), cited in L.V.H.M’s brief, a panel of this Court addressed whether a father, whose parental rights were terminated, was entitled to file post-trial motions. The majority of the panel held that he was entitled to file post-trial motions to give the trial court an opportunity to correct any errors before it entered its final decree. The panel vacated the order involuntarily terminating the father’s parental rights and remanded the matter for further proceedings. The panel further directed the trial court, on remand, to enter a finding, based solely on the evidence already presented, on how terminating the father’s parental rights would affect the children, as required by section 2511(b) of the Adoption Act.

¶ 11 Judge Schiller, who authored a separate concurring opinion in J.J.F., expressed his dismay at the failure of the counsel appointed to represent the children in fulfilling her responsibilities, pointing out that she failed to evaluate in detail how the termination would serve the needs and welfare of the children.

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Bluebook (online)
751 A.2d 1186, 2000 Pa. Super. 139, 2000 Pa. Super. LEXIS 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-involuntary-termination-of-parental-rights-concerning-efh-pasuperct-2000.