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In re Q.R.D.

Superior Court of Pennsylvania

June 25, 2019

IN RE: Q.R.D., A MINOR APPEAL OF: N.J.D., NATURAL FATHER

          Appeal from the Decree Entered January 15, 2019 In the Court of Common Pleas of Schuylkill County Orphans' Court at No(s): A63-245A-17

          BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI [*] , J.

          OPINION

          DUBOW, J.

         Appellant, N.J.D. ("Father"), appeals from the January 15, 2019 Decree that terminated Father's parental rights to Q.R.D. ("Child"). After careful review, we affirm.

         FACTUAL AND PROCEDURAL HISTORY

         This Court has previously summarized the factual and procedural history as follows:

Child was born in August of 2013 to K.D. ("Mother") and Father. Mother and Father were unmarried at the time of Child's birth and lived together until approximately December of 2013, when they separated. The parties subsequently entered into a custody agreement in the Carbon County Court of Common Pleas in April of 2014. The custody order provided Mother with primary custody of Child and partial custody to Father. When Mother subsequently refused to follow the custody order, Father filed a petition for contempt with the Carbon County Court of Common Pleas, and Mother was found to be in contempt.
A second custody order was entered in June of 2014, which continued to give Mother primary custody and Father partial custody. In July of 2015, while Child was in Father's custody, Child suffered burn marks. The matter was referred to Children and Youth Services, but it was determined there was no need for services. Thereafter, Mother would not allow Father to have custody of Child outside of Mother's home. Although Father had successfully filed a contempt action against Mother in May of 2014, he chose not to seek another contempt finding. From July of 2015 until May of 2016, Father's visits with Child were sporadic. Father saw Child on May 5, 2016, the day Father exited rehabilitation services [for treatment of depression and drug use], during a chance encounter at a local supermarket and later that day.
There was also evidence provided that Father attempted to see Child on Child's birthday in August of 2016. Father testified that Mother agreed to allow Father to see Child on that date and Father waited at Mother's home until Child and Mother returned. Mother, however, testified that Father advised her that he was going to Mother's house on that date, and she told him they were not home but that he could wait until Mother and Child returned home. While waiting, Father stated that Mother's Father, A.H. ("Maternal Grandfather"), who lives with Mother, Child, and B.M.D. ("Stepfather"), started an argument with him, so he left before seeing Child. Father left birthday presents for Child. Father maintains that he attempted to contact Mother and Maternal Grandfather after August of 2016 in an effort to see Child. Father stated that his calls to Mother would "not go through," and he speculated that Mother blocked his number or changed her number [despite the fact that Mother presented evidence showing that her phone number had not changed since 2014]. Father contends that neither Mother nor Maternal Grandfather returned his messages.
In November or December of 2016, Father maintains that he advised Maternal Grandfather that he planned to move to Philadelphia, where he had accepted a job. Father asserts that neither Mother nor Maternal Grandfather responded. Father remained in Philadelphia until September of 2017, when he moved back to Schuylkill County because Mother and Stepfather had begun the process to terminate Father's parental rights to Child. Father acknowledged that he had not seen Child since May 5, 2016. Despite Mother's efforts to keep Child from Father, Father has not filed any proceedings against Mother since the contempt action in 2014.

In re Q.R.D., No. 1060 MDA 2018, unpublished memorandum at 1-2 (Pa. Super. filed December 24, 2018).

         On November 21, 2017, Stepfather filed a Petition to Involuntarily Terminate Father's Parental Rights.[1] The trial court appointed Constance A. Calabrese, Esq. to represent Child. On June 8, 2018, after a hearing, the trial court issued an Opinion and Final Decree that granted Stepfather's Petition, terminated Father's parental rights, and awarded full legal and physical custody to Mother and Stepfather.

         After the termination hearing, Attorney Calabrese notified the trial court that she was retiring. The trial court appointed Shelby G. Hostetter, Esq., to represent Child in further proceedings.

         Father timely appealed. On appeal, this Court addressed sua sponte whether the representation of Child by Attorney Calabrese satisfied the requirements of 23 Pa.C.S. § 2313(a), which provides, inter alia, that "[t]he 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."[2] This Court determined that the record was devoid of evidence regarding Child's preference regarding the involuntary termination proceeding and, consequently, we found "no basis upon which to conclude that Attorney Calabrese effectively represented Child's legal interests in this matter." In re Q.R.D., supra, at 9. This Court vacated the Decree without prejudice and remanded the case to permit the trial court to determine whether a conflict existed between Child's best interests and legal interests, if ascertainable. Id.

         On January 14, 2019, upon remand, the trial court held a hearing to determine whether Child's legal interests were ascertainable at the time of trial. The trial court heard evidence from newly-appointed Attorney Hostetter, who met with Child on January 7, 2019. Based on testimony from Attorney Hostetter, the trial court made the following findings: "It was [Attorney Hostetter's] impression that [Child], who is now five years old, was quite immature for his age. He showed no recognition of [Father]'s name and no memory related to [Father] other than [Stepfather]. It was Attorney

         Hostetter's opinion that [Child] had no understanding of the litigation and was unable to express a preference for its outcome." Opinion After Remand, filed 1/15/09, at 1. On January 15, 2019, the trial court issued an Order that concluded: "[Child]'s legal interests were unascertainable at the time of trial, and [] Attorney Calabrese properly represented the best interest of [Child] at trial," and terminated Father's parental rights pursuant to 23 Pa.C.S. §§ 2511(a)(1) and (b). Order, 1/15/19.

         Father timely appealed. Father and the trial court complied with Pa.R.A.P. 1925.

         ISSUES ...


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