In Re: Z.P.F., Appeal of: A.M.K.

• Court: Superior Court of Pennsylvania
• Decided: July 30, 2021
• Docket: 311 MDA 2021
• Status: Unpublished

Opinion

J-S22038-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: Z.P.F., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: A.M.K., MOTHER : : : : : : No. 311 MDA 2021

Appeal from the Decree Entered January 21, 2021 In the Court of Common Pleas of Schuylkill County Orphans' Court at No(s): A63-021-20

BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: July 30, 2021

This appeal concerns a decree entered by the Schuylkill County Orphans’

Court (trial court) terminating the parental rights of A.M.K. (Mother) over the

minor child, Z.P.F. (the child). Mother contends that the trial court abused its

discretion in entering the decree because she had no legal counsel at the time

it was entered; she also asserts that the decree should be vacated because

the evidence was insufficient to establish that her parental rights should be

terminated. Because it is undisputed that Mother was uncounseled at the time

of termination, we accede to the trial court’s request to vacate the decree and

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* Retired Senior Judge assigned to the Superior Court. J-S22038-21

remand the case for further proceedings at which new counsel may be

appointed.1

In 2018, the child was placed with the Schuylkill County Children and

Youth Agency (CYS). In 2019, the placement goal for the child was changed

from reunification with Mother to adoption. The next year, CYS filed a petition

to terminate Mother’s parental rights and a hearing was initially scheduled to

take place on July 8, 2020. The trial court continued the hearing and ordered

that Mother be permitted to retain court-appointed counsel. Two days later,

counsel was appointed to represent Mother.

However, Mother notified the trial court on August 24, 2020, that she

had retained private counsel, and in response, the trial court vacated the order

appointing counsel. The hearing on CYS’s petition was then continued several

times prior to the date on which it was ultimately held, December 29, 2020.

A day before that hearing, Mother’s privately-retained counsel informed the

trial court that she would be withdrawing from the case and that Mother would

be representing herself. That same day, Mother contacted the trial court to

give notice that her privately-retained counsel was not withdrawing after all.

1 The trial court simultaneously entered a nearly identical decree terminating

the parental rights of B.L.F., the child’s father, who has sought review of that decree at appellate docket number 489 MDA 2021. The facts and legal issues of both appeals are identical for present purposes.

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For reasons that are not clear from the record, Mother did not attend

the hearing on December 29, 2020. Neither did Mother’s privately-retained

counsel. The trial court contacted the office of private counsel and was told

that counsel was indeed withdrawing. Mother did not contact the trial court

to explain why she had failed to appear or whether she was represented by

an attorney.

Exasperated by the numerous delays of the hearing and the lack of

explanation for Mother’s absence, the trial court went on with the hearing. At

the conclusion of the testimony, the trial court entered a decree terminating

Mother’s parental rights pursuant to the Pennsylvania Adoption Act, 23 Pa.C.S.

§ 2101, et seq. Mother appealed and the trial court filed a 1925(a) opinion

summarizing the procedural history, case facts and applicable law. The trial

court analyzed the evidence and concluded that termination was proper under

subsections 2511(a)(1), 2511(a)(2), 2511(a)(5), 2511(a)(8), and 2511(b) of

the Adoption Act. See Trial Court 1925(a) Opinion, 1/21/2021, at 12-20.

In a supplemental 1925(a) opinion filed on March 2, 2021, the trial court

addressed additional evidentiary claims raised in Mother’s 1925(b) statement

of issues complained of on appeal. See Trial Court Supplemental 1925(a)

Opinion, 3/2/2021, at 1-3. The trial court also responded to Mother’s claim

that she was erroneously denied the right to be represented by counsel at the

hearing held on December 29, 2020. See id. at 2-3. The supplemental

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opinion implied that Mother waived the right to counsel by failing to appear

for the hearing and not giving the court notice of her whereabouts. See id.

However, the trial court then filed a second supplemental 1925(a)

opinion, requesting this Court to vacate the decree on the ground that it was

entered while Mother was uncounseled:

In consideration of the constitutional nature of parental rights, I believe doing so was in error without first ascertaining the status of Mother’s representation by counsel. I request that the matter be remanded so that current appointed counsel may represent Mother at a new hearing even if Mother again fails to appear.

Trial Court Second Supplemental 1925(a) Opinion, 5/3/2021, at 2. Mother

has raised the issue of lack of counsel in her appellate brief. See Appellant’s

Brief, at 9-12.

We agree with Mother and the trial court that this case must be

remanded for a new hearing on CYS’s petition to terminate Mother’s parental

rights.2 All such proceedings are governed by the Adoption Act, which

mandates that the trial 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.” 23

2 A parent’s improper deprivation of the right to counsel at a termination proceeding is an error of law that a reviewing court is required to correct, regardless of whether the issue has been raised by the appellant. See generally In re X.J., 105 A.3d 1, 4 (Pa. Super. 2014).

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Pa.C.S. § 2313(a.1). “[A]n indigent parent in a termination of parental rights

case has a constitutional right to counsel[.]” In re J.T., 983 A.2d 771, 774

(Pa. Super. 2009) (citations omitted).

In this case, the circumstances which caused the withdraw of Mother’s

counsel and Mother’s non-appearance at the hearing are unknown. Counsel

did not file a petition to withdraw as required by Pa.R.C.P. 1012,3 depriving

the trial court and Mother of formal notice in advance of the hearing that

counsel was withdrawing. If that had been done, it would have been clear

3 This procedural rule provides in pertinent part:

c) Leave of court to withdraw an appearance shall be sought by petition pursuant to subdivision (d) or subdivision (e) as may be applicable.

(d)(1) If the whereabouts of the party on whose behalf the appearance was entered are known, the attorney shall

(i) set forth the address of that party in the petition.

(ii) serve notice of the petition on the party in the manner provided by Rule 440.

(iii) file a certificate of service of the notice with the petition, and

(iv) immediately notify the party by ordinary mail of the entry of an order granting leave to withdraw. The notice shall include a copy of the order.

Pa.R.C.P. 1012(c)-(d).

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why counsel was withdrawing and whether Mother was then entitled to court-

appointed counsel.

Nonetheless, once counsel informed the trial court of her intent to

withdraw on the day of the hearing, Mother was again entitled to notice from

the court regarding her right to have counsel reappointed. See generally In

re X.J., 105 A.3d 1, 4-5 (Pa. Super. 2014) (vacating termination decree where

record did not establish uncounseled parent had received adequate notice of

the right to counsel at the termination proceedings). It appears that such

notice was not given at that point. Accordingly, as both Mother and the trial

court have requested, we vacate the decree of termination and remand the

case for further proceedings at which Mother will receive the benefit of

appointed counsel.4

Decree Vacated. Case remanded with instructions. Jurisdiction

relinquished.

4 Having disposed of this appeal based on Mother’s right to representation at

the termination hearing, it is unnecessary for this Court to address the merits of the remaining issues raised in Mother’s appellate brief.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/30/2021

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