Adoption of: B.W., Appeal of: C.N. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: B.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.N., MOTHER :
:
:
:
:
: No. 434 WDA 2021
Appeal from the Order Entered March 17, 2021
In the Court of Common Pleas of Fayette County Orphans' Court at
No(s): No. 6- ADOPT- 2019
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 8, 2022
C.N. (“Mother”) appeals from the order entered on March 17, 2021,
which denied her petition to terminate the parental rights of A.W. (“Father”)
as to their daughter, B.W., born in February 2015, in order to allow Mother’s
husband, N.N. (“Stepfather”) to adopt B.W. We reverse and remand for
proceedings consistent with this memorandum.
This appeal involves Mother’s second petition to terminate Father’s
parental rights as to B.W. A prior panel of this Court detailed much of the
family history on Mother’s appeal from the denial of her first petition. We
restate the relevant portions as follows:
Mother and Father are the parents of [B.W]. Mother and Father
never married. Mother resides in Mills Run, Pennsylvania, with
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* Retired Senior Judge assigned to the Superior Court.
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her three daughters, E.L.N. (born in July 2013), [B.W.] and C.R.N.
(born in April 2018).[1] After [B.W.]’s birth in February 2015,
[B.W.] resided with Mother, Father, and E.L.N., until April 2015,
when Father disappeared for four months, until late August or the
beginning of September 2015. Mother explained that, when
Father left for work one day in August 2015, he left behind all of
his belongings, and did not make any phone calls to her for four
months. Between late August 2015 and January 2017, Father had
only sporadic contact with [B.W]. Mother stated that Father would
speak with [B.W.] either over the telephone or, infrequently, in
person, but only when “he just felt like it.” In December 2016,
when Mother’s house burned down, Mother was staying at her
mother’s home, and Father came to live there with
Mother. Mother testified that she and Father would live together
off and on for “just reasons.” Mother testified that Father did not
visit [B.W.] when he was not living with Mother.
On April 6, 2017, Mother and Father permanently ended their
relationship. According to Mother, between April 2017 and June
2017, Mother and Father did not reside together, and Father saw
[B.W.] only three times. . . . Father’s last visit or in-person
contact with [B.W.] was on June 11, 2017, when [B.W.] was two
years old. Mother stated that, after June 11, 2017, Father would
“go weeks” without contacting her. Since June 11, 2017, Father
did not give [B.W.] any Christmas cards or gifts, nor did he call
her. Father had not attended or taken [B.W.] to any of her
physician’s or dentist’s appointments since that date, nor had he
provided any meals for [B.W.], comforted [B.W.] when she was
hurt, or tucked her into bed at night.
. . . Father filed a custody Complaint regarding [B.W.] in
November 2018. . . .
Mother married Stepfather in October 2018. Mother had an active
child support [o]rder against Father between 2015 and [April 9,
2020]. In June 2018, Mother and Stepfather received an
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1 As of the instant termination petition, Mother also resides with her son,
D.D.N. (born in February 2020). Additionally, we observe that in the notes of
testimony from the instant termination proceedings, the initials for Mother’s
eldest child are A.L.N., not E.L.N. However, as this child is not part of this
appeal, we do not alter our prior abbreviation to match the current record.
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insurance card for [B.W.], and they were aware that Father also
provided health insurance for [B.W].
Mother filed the [first] termination [p]etition on February 13,
2019. Therein, Mother alleged that [B.W.] had lived with her since
birth; Father ha[d] not seen [B.W.] since June 11, 2017; Father
had evidenced a settled purpose to relinquish his claim to [B.W.];
and Father ha[d] refused or failed to perform parental duties. On
April 9, 2020, the [orphans’] court conducted a termination
hearing.
In re Adoption of B.M.W., 240 A.3d 125 (Pa.Super. 2020) (non-precedential
decision at 1-4) (footnotes and citations omitted).
On December 23, 2019, the orphans’ court denied Mother’s petition,
concluding that because Father had initiated custody litigation, Mother had
failed to establish that Father took no action during the six months preceding
the filing of the petition. Additionally, the court found that Mother had created
obstacles to prevent Father from having contact with B.W. and concluded that
Mother failed to establish that termination would be in B.W.’s best interest.
Mother appealed to this Court. Upon review, we concluded that the
court’s credibility and weight determinations were supported by the record
and the court did not err or abuse its discretion in finding that Mother failed
to sustain her burden of proof. Thus, on August 7, 2020, we affirmed the
order of the orphans’ court. Id.During the pendency of that appeal, the parties began reunification
proceedings for Father and B.W.2 Father attended three sessions with B.W.
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2We noted in the prior appeal that the court in the custody case had appointed
Kathryn Vozar as a reunification counselor. In re Adoption of B.M.W., 240
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in February 2020. While the sessions went well, Father appeared to be under
the influence of drugs at the second session. Consequently, Ms. Vozar, the
reunification counselor who coordinated the sessions, required Father to
undergo a drug screen before the third session. Although he had one week
to comply, Father did not undergo a drug screen until the morning of the third
session, February 27, 2020. The results were not immediately available and
Father was permitted to attend that third session. Subsequently, the test
yielded positive results for cocaine and heroin. As a result, Ms. Vozar stopped
any further reunification sessions until Father provided proof of treatment and
two months of negative drug screens. Father never provided the
documentation to Ms. Vozar or contacted her about treatment and the
reunification proceedings ceased. N.T., 1/20/21, at 98-103, 107, 110.
Instead, in April 2020, Father reached out directly to Mother to video
chat with B.W. via Facebook Messenger. Father had three video chat sessions
with B.W. in April 2020. However, during the last session, Father upset B.W.
and she terminated the call, crying hysterically. Id. at 29-31; N.T., 2/18/21,
at 13, 15. Based on this interaction, Mother asked her counsel to send a letter
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A.3d 125 (Pa.Super. 2020) (non-precedential decision at 13 n.11). Ms. Vozar
testified in the underlying proceedings that at the time of the prior termination
hearings, Father had completed his initial intake but reunification proceedings
had not yet begun because it was unclear from the court order who was
responsible for the reunification fees. N.T., 1/20/21, at 89, 96.
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to Father’s counsel advising him to act appropriately around B.W. and to re-
initiate professionally supervised visitation.3 N.T., 1/20/21, at 38-40.
Mother and Father attempted to set up subsequent video chats and
voice calls, and Father sent a video apology to B.W., but B.W. refused to talk
to Father. Finally, on April 30, 2020, B.W. spoke to Father on a voice call, but
she ultimately terminated that call early as well. Id. at 37, 40; N.T., 2/18/21,
at 16-17, 20. Father did not contact Mother or B.W. after April 30, 2020.4
N.T., 1/20/21, at 40, 82; N.T., 2/18/21, at 32.
Mother filed the instant petition for termination of Father’s parental
rights on November 19, 2020. Therein, Mother alleged that Father had
evidenced a settled purpose to relinquish his claim to B.W. as his last contact
with B.W. was on April 30, 2020. On January 20 and February 18, 2021, the
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3 The letter was mailed on April 21, 2020, but Father testified that he did not
receive it until May of 2020.
4 The following exchange occurred on Facebook Messenger after B.W.
terminated the call:
Father: Why does she think I’m mean
Mother: Because of the phone call from before. This has messed
with her anxiety really bad
Father: I wasn’t being mean or making fun of her I just wanna
be able to talk with her I feel so bad
Mother: She doesn’t want to talk. [B.W.] has a lot of problems
and this situation is taking a toll on her.
Mother’s Exhibit 3 at unnumbered 11.
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orphans’ court conducted termination hearings. The court incorporated the
transcript from the prior termination proceeding and renewed Michael Ford,
Esquire, as legal interest counsel and guardian ad litem (“GAL”) for B.W. from
the prior termination proceeding.5 At the time of the instant termination
hearings, B.W. was just shy of six years old. Mother testified on her own
behalf and presented the testimony of Ms. Vozar and Father’s girlfriend.
Father testified on his own behalf and presented the testimony of his sister.
On March 17, 2021, the orphans’ court denied Mother’s petition.
This appeal followed. Both Mother and the orphans’ court complied with
Pa.R.A.P. 1925. Mother presents the following issues:
A. Whether the [orphans’] court erred by failing to properly
analyze Father’s failure to perform parental duties within the
six months preceding Mother’s termination of parental rights
petition and failing to assess Father’s failure to do the same
when looking at the “whole record” pursuant to 23 Pa.C.S.A.
§2511(a)(1) and applicable case law.
B. Whether the [orphans’] court abused its discretion by
exhibiting bias in favor of Father by prejudging the case and
granting leeway to him while appearing hostile against Mother
throughout the proceeding and characterizing Mother’s actions
as “devious” in its opinion, which was unsupported by the
record.
C. Whether the [orphans’] court erred by failing to consider
[B.W.]’s best interest under 23 Pa. C.S.A. §2511(b).
D. Whether the [orphans’] court erred by failing to ensure the
[GAL] met the standard mandated by 23 Pa.C.S.A. §2313(a),
requiring appointment of a GAL to advocate for [B.W.]’s best
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5We note with disapproval that Attorney Ford did not file a brief in this appeal
advocating B.W.’s legal interests.
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interests and express Child’s preferences, when the GAL: failed
to meet [B.W.], assess bond, or make a recommendation to
the court.
Mother’s brief at 3-4 (unnecessary capitalization omitted).
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
The standard of review in termination of parental rights cases
requires appellate courts 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 supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized [the appellate court’s] deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (cleaned up). “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.” In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation
omitted). “[I]f competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.” In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by §2511 of the Adoption
Act and requires a bifurcated analysis of the grounds for termination followed
by the needs and welfare of the child.
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Our case law has made clear that under [§]2511, the court must
engage in a bifurcated process prior to terminating parental rights.
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 [§]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 [§]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 L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We have
defined clear and convincing evidence as that which 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.” In re
C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (citation and quotation
marks omitted).
Here, Mother petitioned to terminate Father’s parental rights pursuant
to 23 Pa.C.S. § 2511(a)(1) and (b). These subsections provide as follows:
(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 rights
of a parent shall give primary consideration to the developmental,
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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
efforts by the parent to remedy the conditions 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). Termination is proper when the moving party
proves grounds for termination under any subsection of §2511(a), as well as
§2511(b). T.B.B., supra at 395. If the court finds that the moving party has
satisfied the statutory grounds for termination, “it must then determine
whether the termination of parental rights serves the best interests of the
child.” In re C.T., 944 A.2d 779, 782 (Pa.Super. 2008) (citation omitted).
Our Supreme Court set forth the proper inquiry under §2511(a)(1) as
follows:
Once the evidence establishes a failure to perform parental duties
or a settled purpose of relinquishing parental rights, the court
must engage in three lines of inquiry: (1) the parent’s explanation
for his or her conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect
of termination of parental rights on the child pursuant to Section
2511(b).
In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998) (citation
omitted).
As it relates to timing, this Court further explained,
the trial court must consider the whole history of a given case and
not mechanically apply the six-month statutory provision. The
court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination
of his or her parental rights, to determine if the evidence, in light
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of the totality of the circumstances, clearly warrants the
involuntary termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa.Super. 2002). In this
vein, “[a] parent’s vow to cooperate, after a long period of uncooperativeness
regarding the necessity or availability of services, may properly be rejected as
untimely or disingenuous.” Id. at 340 (citation omitted). As it relates
to §2511(a)(1), “[a] parent is required to exert a sincere and genuine effort
to maintain a parent-child relationship; the parent must use all available
resources to preserve the parental relationship and must exercise ‘reasonable
firmness’ in resisting obstacles placed in the path of maintaining the parent-
child relationship.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003)
(citation omitted). “This court has repeatedly recognized that 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
immediate physical and emotional needs.” Id. (cleaned up).
Instantly, the relevant six-month period was from May 19 to November
19, 2020. As noted hereinabove, Father had no contact with B.W. during that
period. In explaining its reasons for denying the termination petition, the
orphans’ court provided the following summary:
The court finds that the April 21st, 2020 letter impeded free
communication between the non-custodial parents and [B.W].
The court finds that the ambiguously hostile nature of the
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language of the letter, combined with Father’s relatively limited
education, was at best inarticulate and at worst, insidious.
Indeed, the tactic of threatening the Father for attempting to
communicate with [B.W.], succeeding, and then arguing that the
Father has not been proactive enough in his efforts to
communicate smacks of deviousness. It constitute the very type
of “deliberately created obstacle” contemplated by the
Pennsylvania Superior Court in In re B.,NM., 856 A.2d 847, 855-
56 (Pa.Super. 2004).
Meanwhile, the Father continued to litigate the appeal of the
denial of the February 13th, 2019 termination of parental rights
petition before the Pennsylvania Superior Court and, on August
7th, 2020, prevailed.
The court finds that the father has neither evidenced a
settled purpose of relinquishing a parental claim to [B.W.] nor has
he refused or failed to perform parental duties.
Orphans’ Court Opinion, 3/17/21, at 4 (capitalization altered; emphasis in
original).
Mother contends that she established grounds for involuntary
termination of Father’s parental rights pursuant to §2511(a)(1) due to Father’s
lack of contact with B.W., which she avers was due to his own inaction, not
Mother’s letter. Mother’s brief at 30. Mother further avers that Father
admitted to doing nothing for B.W. during the relevant six-month period and
“did nothing to overcome [the] perceived ‘closed door’” ostensibly created by
her letter. Id. at 32-33. Thus, Mother argues that “[f]or the second time,
the [orphans’ c]ourt failed to consider Father’s lack of effort and instead
focused exclusively on Mother’s conduct.” Id. at 33. Regarding the court’s
emphasis on Father litigating the prior appeal, Mother avers that Father’s brief
was filed on May 4, 2020, nothing else was filed by either party after that
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date, and “[i]dly awaiting a pending Superior Court decision is not ‘performing
parental duties’ within the six-month look-back period.” Id. at 55.
Instantly, the filings related to the prior appeal are not part of the
certified record and thus we cannot determine whether Father actively
participated in the appellate process during the relevant six-month period.
Even assuming Father actively participated in response to Mother’s appeal of
the order denying her petition to terminate Father’s parental rights, what we
find much more telling is Father’s actions in maintaining contact with B.W.
after facing various obstacles, i.e., his negative drug test, B.W. not wanting
to talk to him on informal calls after he upset her, and the letter from Mother’s
counsel advising Father’s counsel to re-initiate professionally supervised
visitation.
Upon review of the parties’ briefs and certified record, we conclude that
the court abused its discretion in finding that Mother failed to establish her
evidentiary burden under §2511(a)(1). Stated simply, the record does not
support the trial court’s elevation of Mother’s letter over Father’s inaction. In
fact, the letter, while critical of Father’s interactions with B.W., can neither be
described by this Court as “insidious,” “threatening,” or “hostile.” The letter
did not order Father to stop contacting B.W., but rather, given his conduct
during the offending video chat, asked counsel to “advise your client that he
must set up professionally supervised visitation and refrain from harassing my
client and antagonizing this child. I do not know how much control you have
over your client, but it is necessary to have third-party guidance in order to
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prevent further harm.” Mother’s Exhibit 4 (Letter from Allison Reynolds,
Esquire, 4/21/20) at unnumbered 2. Father took no actions to attempt to
overcome this purported obstacle, nor did he take any actions to re-initiate
professionally supervised visitation.
Indeed, Father’s initial inaction regarding the professionally supervised
reunification proceedings prompted the informal video chats. As noted
hereinabove, the reunification proceedings, with which Mother complied, were
suspended due to Father’s positive drug test for cocaine and heroin and his
failure to follow through with recommended drug treatment and evidence of
sobriety. According to Ms. Vozar, she did not believe it was safe for Father to
be around B.W. while under the influence of cocaine and heroin and she was
not willing to resume reunification proceedings until Father could demonstrate
sobriety. Father never contacted Ms. Vozar about treatment, his sobriety, or
about resuming sessions. Instead, he sought informal video chat sessions
with B.W. in April 2020. Although Mother permitted these, they ultimately led
to the conversation that upset B.W. so much that Mother asked Father to re-
initiate professional visitation sessions. Notably, at the time of the termination
hearings, Father testified that he still was not sober.
Critically, the certified record does not indicate that reunification is
possible at this point or that Father exerted a “sincere and genuine effort to
maintain a parent-child relationship[.]” In re C.M.S., supra at 462.
Reunification proceedings were halted because of Father’s drug use and,
despite being offered treatment, Father continued to be an active drug user
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as of the time of the termination hearings. He failed to have any contact with
B.W. during the relevant six-month period and neglected to make any effort
to overcome the perceived obstacle of Mother’s letter, which contrary to the
orphans’ court’s interpretation, did not bar contact with B.W., but requested
that Father comply with the terms of professionally supervised visitation.
Father had an avenue to maintain contact with his daughter, but he declined
to overcome the obstacle of his drug addiction in order to restart the
supervised vistation, thereby rendering reunification impossible. Based on the
foregoing, Mother established her burden under §2511(a)(1), and the
orphans’ court abused its discretion in finding otherwise.
Instantly, because the orphans’ court denied Mother’s petition based on
an erroneous conclusion that she failed to establish grounds under
§2511(a)(1), the court did not conduct the requisite §2511(b) analysis.
Relatedly, Mother argues that Attorney Ford did not advocate for B.W.’s best
interests or express her preference. Mother’s brief at 73. Thus, Mother
contends that “[B.W.] had no voice in this action” and requests “remand for
consideration of bond” and, if necessary, “to appoint counsel for [B.W].” Id.
at 77. The orphans’ court found that the record was “full and complete with
respect to this issue” and that this Court’s decision in the prior appeal
contained “a true and correct reiteration thereof.” Orphans’ Court Statement
in Lieu of Opinion, 4/9/21, at 5. Mother counters that because this Court
found Mother had not met her burden under §2511(a) on the prior appeal, we
did not consider Mother’s arguments about Attorney Ford’s representation of
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B.W. Mother’s brief at 75. Moreover, Mother argues that Attorney Ford did
not meet with B.W. prior to the instant termination hearings, despite B.W.
having aged two years since the prior hearings, and did not ask Father a single
question. Id. at 76-77.
Our Supreme Court has held “that Subsection 2313(a)[6] simply does
not require counsel to place the child’s legal interests on the record. Indeed,
the statutory directive is to the court, not counsel.” In re Adoption of
K.M.G., 240 A.3d 1218, 1227 (Pa. 2020). The Court continued, stating:
We additionally reject the underlying assumption that the absence
of a child’s preference on the record equates to counsel’s failure
to ascertain the child’s preferred outcome or to provide effective
representation of his or her client for purposes of Section
2313(a). Children for whatever reason may understandably resist
stating whether their parents’ rights should be terminated and
may be averse to declaring their preference between their natural
and foster parents. While we recognize that it may be a best
practice for a child’s legal counsel to divulge the child’s
preferences in order to advocate for their client’s preferred
outcome, we find nothing in the language of the Adoption Act
requiring that their preference be placed on the record, which
instead only requires that the child be appointed
counsel. Moreover, we observe that the child’s legal counsel has
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6 This subsection provides 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. 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).
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a duty of confidentiality to their client, the child, such that they
should not be compelled to disclose the child’s preferences. We
are thus wary to create a bright-line rule requiring counsel and
the courts to place the children’s preferred outcome on the record
as we are concerned by both the potential violation of a child’s
attorney-client privilege and with the real specter of placing
unconscionable stress on a child by mandating that her feelings
regarding her parents and caretakers be made public and
permanently enshrined in the record.
Id. at 1237-38.
On appeal from the denial of Mother’s first termination petition, this
Court recounted that Attorney Ford had stated at that underlying termination
hearing that he had met with B.W., who was then four years old. B.M.W.,
supra (non-precedential decision at 5-6). Attorney Ford offered no such
indication at the instant termination proceedings, despite B.W. having aged
approximately two years in the interim and the circumstances having
changed. Attorney Ford also did not state her preference at the instant
termination hearings. Rather, he merely left it up to the discretion of the
orphans’ court. See N.T., 2/18/21, at 92-92. While counsel is not required
to place a child’s preference on the record, we are troubled by the combination
of Mother’s assertion that Attorney Ford failed to meet with B.W. prior to the
termination hearings and Attorney Ford’s lack of advocacy on B.W.’s behalf at
the termination and appellate level.
Before we address the adequacy of that representation, however, we
observe that “where the orphans’ court has appointed a single attorney to
serve as [GAL] and legal counsel to represent both the child’s best interests
and legal interests, [our Supreme Court] concluded an appellate court should
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review sua sponte whether the court made a determination that those
interests did not conflict.” In re P.G.F, 247 A.3d 955, 964–65 (Pa. 2021).
The Court “cautioned that ‘appellate review of this question does not involve
second-guessing whether GAL/Counsel in fact had a conflict but solely whether
the orphans’ court made the determination in the first instance.’” Id. at 965
(quoting K.M.G., supra at 1235-36) (cleaned up)).
Presently, there is no indication in the certified record that the orphans’
court made the requisite determination that then-almost-six-year-old B.W.’s
legal and best interests did not conflict. Although this Court noted during the
prior appeal that there appeared to be no conflict, nearly two years passed
between the first termination proceedings and the instant proceedings.
Moreover, it is entirely possible that B.W.’s legal and best interests may have
come into conflict at the time of the instant proceedings regardless of any
apparent non-conflict at the prior proceedings. Since we cannot determine
from the certified record whether the orphans’ court fulfilled its §2313(a) duty
to “determine whether counsel can represent the dual interests before
appointing an individual to serve as GAL/Counsel for a child[,]” we cannot
fulfill our duty to sua sponte “verify that the orphans’ court indicated that the
attorney could represent the child’s best interests and legal interests without
conflict.” K.M.G., supra at 1236.
Based on the foregoing, we reverse the order denying Mother’s petition
to terminate Father’s parental rights and remand the case for the parties to
present evidence at a §2511(b) hearing regarding B.W.’s preferred outcome
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in this termination matter and the effect that termination would have on
B.W.’s developmental, physical, and emotional needs and welfare. We also
direct the orphans’ court to fulfill its §2313(a) duty as articulated in P.G.F.,
supra, and determine whether Attorney Ford may represent the dual interests
of B.W. If the court determines that no conflict exists, Attorney Ford may
represent B.W. at the §2511(b) hearing. If the court determines there is a
conflict between B.W.’s legal and best interests, the court shall appoint
separate legal counsel prior to the §2511(b) hearing. Likewise, we direct
Attorney Ford or newly-appointed counsel to meet with B.W. prior to the
hearing to determine her preference and to advocate on her behalf.7
Order reversed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
____________________________________________
7 We observe that Mother requests this Court remand the matter before
another jurist based on the orphans’ court’s bias in favor of Father and hostility
towards Mother. Mother’s brief at 57. “Generally, a party must seek to have
a judge recused from a case, by first bringing the petition for recusal before
that jurist, thus enabling the judge to evaluate the reasons for recusal
firsthand.” In re Adoption of L.J.B., 18 A.3d 1098, 1112 (Pa. 2011) (citation
omitted). Our Supreme Court has held that sua sponte removal of a lower
court judge “exceed[s] the authority of the Superior Court. The parties are
required to file a motion to recuse and for the judge in question to rule; his or
her decision must stand absent an abuse of discretion.” Commonwealth v.
Whitmore, 912 A.2d 827, 834 (Pa. 2006). Instantly, Mother raised her
recusal request for the first time on appeal. Accordingly, there was no motion
for the orphans’ court to rule on, and no discretion for us to review. As we
cannot sua sponte address this claim, and it cannot be raised for the first time
on appeal, we do not reach this issue. Should Mother wish to pursue this
issue, she may file a petition for recusal with the orphans’ court upon remand.
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J-A29023-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2022
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