In Re: Adoption of H.B.M.Y., a Minor
1543 EDA 2016
| Pa. Super. Ct. | Nov 7, 2016Background
- Child born June 2013; parents placed him with paternal grandparents who have had custody since shortly after birth.
- Grandparents filed a petition on March 11, 2016 to involuntarily terminate Mother’s parental rights, citing Mother’s incarceration and lack of recent contact.
- A termination hearing was held April 18, 2016; Mother received notice but did not appear, and the record does not show the court advised her of or appointed counsel prior to the hearing.
- Orphans’ court entered a decree terminating Mother’s parental rights on April 22, 2016.
- Mother filed a timely pro se appeal alleging she was not informed of her right to counsel and could not afford counsel; the orphans’ court initially denied appointment of counsel on appeal but this court later directed appointment.
- Superior Court vacated part of the decree and remanded for a new termination hearing, instructing the orphans’ court to advise Mother of counsel rights and either appoint counsel or determine she is ineligible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the orphans’ court erred by failing to advise Mother of her right to counsel in an involuntary termination proceeding | Mother: Court failed to notify her of right to court-appointed counsel and thus denied constitutional right to counsel | Grandparents/Orphans’ court: No entitlement to appointment absent a petition; court thought no such right existed on appeal | Court: Vacated termination as to Mother and remanded for a new hearing; court must advise Mother of counsel rights and appoint counsel if she qualifies or make an affirmative ineligibility finding |
| Whether Mother was required to be told how to apply to participate by telephone in the hearing | Mother: She was not advised she needed to apply to participate by telephone | Orphans’ court: (implicit) procedural rule, not raised as dispositive | Court: Declined to decide because failure to advise of counsel was dispositive; remand ordered for new hearing |
Key Cases Cited
- In re T.S.M., 71 A.3d 251 (Pa. 2013) (standard of review and deference to trial court findings in TPR cases)
- In re X.J., 105 A.3d 1 (Pa. Super. 2014) (court must advise indigent parents they may petition for appointed counsel; failure can require sua sponte correction and remand)
- In re J.T., 983 A.2d 771 (Pa. Super. 2009) (recognizing indigent parents’ constitutional right to counsel in TPR proceedings)
- Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 2011) (court may raise and correct certain procedural defects sua sponte)