214 A.3d 233
Pa. Super. Ct.2019Background
- Child born Aug. 2013 to Mother (K.D.) and Father (N.J.D.); parents separated late 2013 and Mother had primary custody per 2014 orders.
- Father had sporadic contact after 2015; last in-person contact acknowledged by Father was May 5, 2016; he did not see Child for ~2 years before the termination hearing.
- Stepfather filed a petition to involuntarily terminate Father's parental rights in Nov. 2017; trial court granted termination under 23 Pa.C.S. §§ 2511(a)(1) and (b) after a contested hearing in 2018.
- This Court vacated and remanded sua sponte to determine whether Child's legal interests were ascertainable and whether counsel had represented those legal interests at trial.
- On remand the trial court found Child (age ~5) unable to express a preference; it concluded Child's legal interests were unascertainable at the time of trial and that prior counsel had validly represented Child's best interests. The trial court again terminated Father's rights; this appeal followed.
Issues
| Issue | Father's Argument | Stepfather/Trial Court Argument | Held |
|---|---|---|---|
| Whether counsel for Child failed to ascertain Child's legal interests before the termination hearing (§ 2313) | Calabrese did not ascertain Child's preference and thus failed to represent Child's legal interests | Child was very young/pre-verbal at trial; no ascertainable preference, so best-interest counsel could represent legal interests | Court held Child's legal interests were unascertainable at trial; appointment satisfied § 2313; no relief to Father |
| Whether clear and convincing evidence supported termination under § 2511(a)(1) (parental duties/refusal) | Father claimed obstacles (Mother blocking contact, phone issues, relocation, rehab) explained noncontact and mitigated culpability | Father failed to make reasonable, affirmative efforts to maintain relationship; nearly two years of no contact; explanations insufficient | Court affirmed termination under § 2511(a)(1): Father refused/failed to perform parental duties for statutory period |
| Whether termination was in Child's best interests under § 2511(b) | Father argued bond/recognition from prior contact showed continued interest and termination not warranted | Child has lived with Mother/Stepfather virtually entire life; Stepfather acted as parent; Child likely would not recognize Father; stability favors termination | Court held termination served Child's developmental, emotional, physical needs; § 2511(b) satisfied |
Key Cases Cited
- In re T.S.M., 71 A.3d 251 (Pa. 2013) (standard for appellate review of termination/deference to trial court findings)
- In re T.S., 192 A.3d 1080 (Pa. 2018) (child's legal interests = child's preference; when preference is unascertainable, best-interest counsel may represent legal interests)
- In re K.Z.S., 946 A.2d 753 (Pa. Super. 2008) (court must consider whole case history and all parental explanations under § 2511(a)(1))
- In re B., N.M., 856 A.2d 847 (Pa. Super. 2004) (definition of parental duties as affirmative obligations to meet child's physical and emotional needs)
- In re Adoption of A.C., 162 A.3d 1123 (Pa. Super. 2017) (bifurcated analysis under § 2511: conduct first, then child's best interests)
- In re L.M., 923 A.2d 505 (Pa. Super. 2007) (importance of bond analysis under § 2511(b))
- In re C.M.S., 884 A.2d 1284 (Pa. Super. 2005) (intangible needs like love, comfort, security relevant to best-interest analysis)