J-S50002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: S.M.S.V., A 

MINOR

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: M.A.S., FATHER

No. 107 MDA 2016

Appeal from the Decree December 9, 2015

in the Court of Common Pleas of Berks County Orphans' Court

at No(s): 84343

BEFORE: MUNDY, STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 05, 2016

M.A.S. (“Father”) appeals from the decree entered on December 9, 

2015, granting the petition filed by J.O. and M.N.R. (“Maternal 

Grandparents”), seeking to involuntarily terminate Father’s parental rights to 

his minor child, S.M.S.V., a female born in March of 2008 (“Child”), pursuant 

to the Adoption Act, 23 Pa.C.S. § 2511(a)(1) and (b).1 We vacate and 

remand.

On July 28, 2015, Maternal Grandparents filed the petition for 

involuntary termination. After the trial court corresponded with Maternal 

 

*

Former Justice specially assigned to the Superior Court.

1 The trial court found that Mother was murdered in 2007, as J.O. testified 

that she was murdered in December of 2007; however, the date of the 

murder is unclear from the record, as the death certificate attached to the 

amended petition provides that Mother’s body was found in December of 

2012. See Trial Ct. Op., 2/23/16, at 2; N.T., 12/9/15, at 5; Death 

Certificate attached to Amended Termination Petition.
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Grandparents’ counsel requesting clarification, Maternal Grandparents filed 

an amended petition on October 13, 2015.2 

The trial court set forth the relevant factual background and 

procedural history of this case in its opinion, as follows.

The petition was filed on the grounds that Father had 

not seen or contacted Child in over two years, had not 

contributed to support of Child, had by his conduct for a 

period in excess of six months clearly indicated a settled 

purpose of relinquishing parental claim to Child, and had 

refused and failed to perform parental duties. Father was 

present at the hearing scheduled for December 9, 2015. 

Upon consideration of the testimony offered at the 

hearing, the [c]ourt terminated Father’s parental rights [in 

the decree entered on December 9, 2015.]

Trial Ct. Op., 2/23/16, at 1.

On January 8, 2016, Father timely filed a notice of appeal, along with 

a concise statement, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On 

February 23, 2016, the trial court appointed Susan N. Denaro, Esq., as 

counsel for Child. The trial court order directed Attorney Denaro to review 

the record in this matter, interview Child, and otherwise conduct an 

investigation into Child’s best interests relative to whether the termination of 

Father’s parental rights was appropriate and whether Child should be 

adopted by Maternal Grandparents. Further, the trial court order directed 

Attorney Denaro to prepare a report containing her findings, conclusions, 

 

2

In its opinion, the trial court referred only to the amended petition. Trial 

Ct. Op., 2/23/16, at 1 n.*.
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and recommendations, file it with the court, and serve it on the parties 

within thirty days.3 Attorney Derano filed her report on March 24, 2016. 

In his brief on appeal, Father raises one issue: “[w]hether numerous 

procedural defects and violations of due process in the lower court below 

necessitate remand of this matter?” In his concise statement, Father

included eight allegations of error. In his summary of argument portion of 

his brief, Father identifies two matters for our review: 

First, despite the fact that Father contested the 

termination of his parental rights, the lower court did not 

appoint counsel to the child or to Father. 

Second, the court failed to enter specific findings regarding 

the statutory factors it considered in making its 

determination. 

Father’s Brief at 9.

Initially, we address Father’s contention that the trial court erred in

failing to appoint counsel to represent him and Child, pursuant to Section 

2313, which provides as follows:

§ 2313. Representation

 

3 On March 7, 2016, this Court remanded the matter, retaining jurisdiction, 

and directed the trial court to determine whether Father’s appointed 

appellate counsel had abandoned him, as counsel failed to timely file a 

docketing statement pursuant to Pa.R.A.P. 3517. The trial court convened a 

hearing on the issue of abandonment on March 16, 2016. The trial court 

entered an order on that same date, finding that Father’s appellate counsel 

had not abandoned him, and permitting counsel to remain as Father’s 

counsel in the appeal.
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(a) Child.—The 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. The court may appoint counsel or a guardian ad 

litem to represent any child who has not reached the age 

of 18 years and is subject to any other proceeding under 

this part whenever it is in the best interests of the child. 

No attorney or law firm shall represent both the child and 

the adopting parent or parents. 

(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.

We could rule that Father waived his argument concerning the trial 

court’s failure to appoint counsel to represent him at the termination 

hearing, as he failed to include this issue in his concise statement and 

statement of questions involved portion of his brief. See Krebs v. United 

Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an 

appellant waives issues that are not raised in the concise statement of errors 

complained of on appeal and the statement of questions involved in the brief 

on appeal). We nevertheless conclude that the petition, the amended 

petition, and the notice of hearing, did not advise Father of his constitutional 

right to counsel. Further, at the termination hearing, the trial court offered 

to continue the matter for Father to retain counsel, but did not explain to 

him that he had a right to appointed counsel if he was unable to pay or if 

payment would result in financial hardship. N.T., 12/9/15, at 8-9; see In re 
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X.J., 105 A.3d 1, 7 (Pa. Super. 2014) (sua sponte remanding the 

termination matter for a new termination hearing where the mother was not 

advised of her right to counsel for termination proceedings). We observe 

that Father is proceeding in this Court in forma pauperis. Thus, we conclude 

that the trial court’s failure to provide proper notice deprived Father of his 

right to counsel. Pursuant to In re X.J., we remand the matter for a new 

termination hearing, before which the trial court shall advise Father of his 

right to counsel, appoint counsel for Father, or affirmatively determine that 

Father does not qualify for counsel. See In re X.J., 105 A.3d at 7.

Indeed, we observe the trial court recognized that it erred by failing to 

appoint counsel for Child because it appointed Attorney Denaro and ordered 

her to file and serve a report on all parties. In its opinion, the trial court 

relied on In re N.A.G., 471 A.2d 871 (Pa. Super. 1984), in which this Court, 

upon considering the father’s exceptions to the decree terminating his 

parental rights, appointed counsel for the children. Upon our review, this 

Court concluded that the belated appointment of counsel was harmless given 

that the children and counsel did not wish to alter the court’s decree.

Instantly, the trial court acknowledged that when In re N.A.G. was 

decided, parties could file exceptions to termination decrees—and that 

practice has been discontinued. The trial court nonetheless suggests that 

this Court should consider its order appointing Attorney Denaro and the 
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results of her report. The trial court requests us to either affirm or remand, 

depending upon the outcome of Attorney Denaro’s report. 

As we are remanding the matter for a new termination hearing with 

the opportunity for Father to have appointed counsel in the trial court, we 

need not review Attorney Denaro’s report at this time. On remand, we 

direct the trial court to consider Attorney Denaro’s report, and to ensure the 

representation of Child at the termination hearing.4 

Decree vacated. Case remanded. Jurisdiction relinquished.

Stabile, J., joins the memorandum.

Mundy, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/5/2016

 

4 Accordingly, we do not reach Father’s challenge to the trial court’s findings 

regarding the statutory factors.