J-S28045-17

2017 PA Super 193

IN RE: ADOPTION OF C.A.S., A 

MINOR

APPEAL OF: B.A.S, JR., NATURAL 

FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 102 WDA 2017

Appeal from the Order Entered December 15, 2016

In the Court of Common Pleas of Cambria County 

Orphans’ Court at No(s): No. 2016-890 IVT

BEFORE: OLSON, MOULTON, and STRASSBURGER,*JJ.

OPINION BY STRASSBURGER, J.: FILED JUNE 21, 2017

B.A.S., Jr. (Father), appeals from the order entered December 15, 

2016, in the Court of Common Pleas of Cambria County, which terminated 

involuntarily his parental rights to his minor son, C.A.S. (Child). We vacate 

and remand for further proceedings consistent with this opinion.

We summarize the relevant factual and procedural history of this 

matter as follows. Child was born in January 2012 to Father and B.N. 

(Mother). N.T., 12/12/2016, at 15. Father and Mother lived together for 

approximately three years prior to Child’s birth and separated approximately 

a year and one half after Child’s birth. Id. According to Mother, she and 

Father separated as a result of Father’s drug use, which included bath salts, 

heroin, crack cocaine, and pills. Id. at 16-17, 33. Meanwhile, Mother began 

dating J.O. (Boyfriend). Id. at 28. Mother and Boyfriend (collectively, the 

Petitioners) began dating approximately two and one half years prior to the 

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* Retired Senior Judge assigned to the Superior Court.
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termination proceedings, and began living together approximately six 

months later. Id. On September 22, 2016, the Petitioners filed a petition to 

terminate Father’s parental rights involuntarily, along with a report of 

intention to adopt. The Petitioners averred that Father’s parental rights 

should be terminated so that Boyfriend can adopt Child.

The orphans’ court conducted a termination hearing on December 12, 

2016. Father appeared at the hearing pro se, and requested that the court 

continue the matter so that he could obtain an attorney. N.T., 12/12/2016, 

at 4. The court asked the Petitioners’ counsel what notice he provided to 

Father regarding his right to an attorney, and Petitioners’ counsel explained 

that he mailed Father a series of documents, including a “letter indicating 

that he’s receiving paperwork relative to his rights as a parent, he has a 

right to a free attorney and to contact the Register of Wills if he should 

desire one.” Id. at 4-5. Counsel continued, “it expressly says he must file 

the enclosed in forma pauperis statement within ten days of the scheduled 

date of the hearing and, if he fails to do so, that the court will assume that 

he waives his rights to request free legal counsel.” Id. The court reviewed 

the documents described by the Petitioners’ counsel, and asked Father 

whether he received them. Id. at 5-6. Father acknowledged that he did 

receive the documents, and that he contacted Laurel Legal Services in order 

to obtain counsel. Id. at 6. Father explained, “Laurel Legal called me and 

said that they couldn’t represent me because they don’t take custody cases.” 

Id. The following discussion then took place.
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THE COURT: It says, Dear [Father], you are receiving 

paperwork relative to your rights as a parent. If you feel that 

you might qualify for court-appointed counsel at no expense to 

you to represent you in these proceedings, you must complete 

and file this financial disclosure form, send it or deliver it to Patty 

J. Sharbaugh, Clerk of Orphans[’] Court, Register of Wills, 

Cambria County Courthouse, with the address. 

[Father]: Yes, sir.

THE COURT: Did you do that?

[Father]: I didn’t get that until November 15 is when I 

signed for it, so I didn’t get that until November 15. I called 

Laurel Legal to see if I could get --.

THE COURT: Okay. Now it didn’t tell you to call Laurel 

Legal. It told you to call the Clerk of Courts Office; right?

[Father]: Well, I figured that’s the way --.

THE COURT: Well, that’s not right. . . .

Id. at 6-7. 

Ultimately, the orphans’ court denied Father’s request for a 

continuance and proceeded with the termination hearing. Id. at 10. On 

December 15, 2016, the court entered an order terminating Father’s 

parental rights to Child involuntarily. Father timely filed a notice of appeal 

and concise statement of errors complained of on appeal.1

Father now raises the following issues for our review.

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1

Father obtained court-appointed counsel on January 9, 2017. Counsel filed 

Father’s notice of appeal and continues to represent him before this Court. 
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1. Whether the [trial c]ourt erred in proceeding with the hearing 

to terminate [Father’s] parental rights to [Child] without [Father] 

having the benefit of counsel[?]

2. Whether the [t]rial [c]ourt erred in terminating [Father’s] 

parental rights to [Child], because the Petitioners failed to meet 

their burden by clear and convincing evidence, including, but not 

limited to failing to identify how termination of [Father’s] 

parental rights would impact the child[?] 

Father’s Brief at 3. 

We consider Father’s issues mindful of our well-settled standard of 

review.

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 our 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) (citations and quotation marks 

omitted). 

In his first issue, Father argues that the orphans’ court erred by 

proceeding with the hearing to terminate his parental rights without 

providing him with court-appointed counsel. Father’s brief at 6-8. Father 

contends that he has only a seventh grade education, and that he was “not 

mentally competent to understand his rights to legal counsel[.]” Id. at 6. 
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Further, Father contends that he “did not have sufficient knowledge or 

comprehension to understand the legal notices to representation which were 

provided to him.” Id. at 7-8. 

Termination of parental rights is governed by the Adoption Act, 23 

Pa.C.S. §§ 2101-2938. The appointment of counsel in involuntary 

termination proceedings is governed by Section 2313(a.1) of the Act, which 

provides as follows. 

(a.1) Parent.--The court shall appoint counsel for a parent 

whose rights are subject to termination in an involuntary 

termination proceeding if, upon petition of the parent, the court 

determines that the parent is unable to pay for counsel or if 

payment would result in substantial financial hardship.

23 Pa.C.S. § 2313(a.1).

Parents in involuntary termination proceedings have a constitutionallyprotected right to counsel. In re X.J., 105 A.3d 1, 4 (Pa. Super. 2014) 

(citing In re J.T., 983 A.2d 771, 774 (Pa. Super. 2009)). This Court has 

held that trial courts need not appoint counsel for indigent parents 

automatically. In re A.R., 125 A.3d 420, 424 (Pa. Super. 2015). However, 

courts must advise parents of their right to petition for counsel. X.J., 105 

A.3d at 4 (citing In re Adoption of R.I., 312 A.2d 601, 603 (Pa. 1973)). A 

parent waives his or her right to counsel if he or she is provided with clear 

instructions on how to petition for counsel, but fails to take action. A.R., 

125 A.3d at 424 (citing In re Adoption of J.N.F., 887 A.2d 775 (Pa. Super. 

2005)).
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The certified record on appeal contains copies of the documents mailed 

to Father by Petitioners’ counsel. The documents are accompanied by a 

certificate of service, indicating that counsel mailed these documents to 

Father on November 15, 2016. There are six documents in total, including: 

a notice of hearing for involuntary termination of parental rights, a notice 

required by Act 101 of 2010, an acknowledgement of notice of voluntary 

agreement law, a letter from the Petitioners’ counsel advising Father how to 

obtain counsel, an additional notice advising Father of the termination 

petition and hearing, and a blank in forma pauperis statement along with a 

blank order granting or denying in forma pauperis status. 

Each of these documents, with the exception of the in forma pauperis

statement, includes instructions on how to request court-appointed counsel 

and/or legal assistance. As observed by the orphans’ court, the letter from 

the Petitioners’ counsel and the additional notice of the termination petition 

and hearing instructed Father that he should request counsel by filling out 

the enclosed in forma pauperis statement and delivering it to the Clerk of 

Orphans’ Court and Register of Wills for Cambria County. 

However, the notice of hearing for involuntary termination of parental 

rights, the notice required by Act 101 of 2010, and the acknowledgement of 

notice of voluntary agreement law, all instruct Father that he should obtain 

counsel and/or legal assistance by contacting Laurel Legal Services. For 

example, the notice of hearing for involuntary termination of parental rights 

includes the following instructions.
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You have a right to be represented at the hearing by a lawyer. 

You should take this paper to your lawyer at once. If you do not 

have a lawyer or cannot afford one, go to or telephone the office 

set forth below to find out where you can get legal help. 

Laurel Legal Services, Inc.

225-227 Franklin Street

Suite 400, Franklin Center

Johnstown, PA 15901-2524

Telephone Number: (814) 536-8917

Notice of Hearing for Involuntary Termination of Parental Rights (attached to 

Certificate of Service), 11/18/2016 (unnecessary capitalization omitted). 

As explained above, parents have a constitutionally-protected right to 

counsel in involuntary termination proceedings. Trial courts must ensure 

that parents are advised of their right to counsel and are provided with clear 

instructions on how to petition for counsel. See A.R., 125 A.3d at 424. Of 

the five sets of instructions that Father received from the Petitioner’s 

counsel, three of them instructed Father that he should request counsel 

and/or legal assistance from Laurel Legal Services. Because it appears that 

Father may have been misled by these conflicting and inaccurate 

instructions, we cannot find that he waived his right to counsel.

Accordingly, we conclude that the orphans’ court erred by failing to 

continue the termination proceedings so that Father could petition for courtappointed counsel. We therefore vacate the order terminating Father’s 

parental rights, and we remand this matter to the court for a new 

termination hearing, prior to which the court shall determine whether Father 
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continues to qualify for court-appointed counsel, and shall appoint counsel 

for Father if necessary.2

Order vacated. Case remanded for further proceedings consistent with 

this opinion. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/21/2017

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2 Because Father’s first issue requires that we vacate the order terminating 

his parental rights, we need not address his second issue.