IN RE: Q.R.D., A MINOR APPEAL OF: N.J.D., NATURAL FATHER
from the Decree Entered January 15, 2019 In the Court of
Common Pleas of Schuylkill County Orphans' Court at
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI [*] , J.
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.
AND PROCEDURAL HISTORY
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).
November 21, 2017, Stepfather filed a Petition to
Involuntarily Terminate Father's Parental
Rights. 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.
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
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." 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.
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
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.
timely appealed. Father and the trial court complied with