J-S34003-17

* Retired Senior Judge specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.A.A.F.M., A 

MINOR

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

APPEAL OF M.C., FATHER

No. 293 EDA 2017

Appeal from the Decree December 2, 2016

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): 

CP-51-AP-0001100-2016

CP-51-DP-0000939-2014

FID: 51-FN-00902-2014

BEFORE: BOWES, SOLANO, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 14, 2017

M.C. (“Father”) appeals from the decree involuntarily terminating his 

parental rights to his daughter A.A.A.F.M. (“A.A.M.”) pursuant to the 

Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), and (b). We are compelled to 

vacate and remand for further proceedings.

A.A.M. was born in 2009. She lived with her mother, L.T.R. 

(“Mother”), and her two younger siblings, A.M. and B.L., until May 2015, 

when A.A.M. and her siblings were placed with a relative. Mother has a 

history of substance abuse and mental health problems, and when the 

Philadelphia Department of Human Services (“DHS”) became involved with 
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the family, A.A.M. and the younger siblings resided with Mother in squalor in 

a structurally unsound home that lacked utilities. On June 16, 2016, DHS 

filed a dependency petition, and the juvenile court subsequently adjudicated 

all three children dependent. The children currently reside together in 

kinship care with a maternal aunt, a pre-adoptive resource who noted her 

intention to permit post-adoption contact pursuant to Act 101, i.e., 23 

Pa.C.S. §§ 2731–2742 (permitting agreement for post-adoption 

communication or contact). 

Meanwhile, on December 10, 2015, DHS identified Father, who was 

absent through most of juvenile court proceedings, as A.A.M.’s biological 

father. As it relates to the dispositive issue in this appeal, on the date that 

Father was identified, the juvenile court determined that Father resided on 

South 61st Street in Philadelphia, Pennsylvania. The trial court summarized 

Father’s involvement as follows:

On June 3, 2016, Father attended a permanency review hearing. 

Since that hearing date, Father failed to attend any future 

hearings. Father also failed to visit [A.A.M.] or attempt to 

engage [A.A.M.]. Father also failed to communicate with 

[Northeast Treatment Center (NET)], and DHS as to his 

whereabouts and availability. On November 8, 2016, a Parent 

Locater Service Report (PLS) was prepared and it was 

determined that Father could not be located.

Trial Court Opinion, 2/25/17, at 3. 

On November 15, 2016, DHS filed a petition to terminate Father’s 

parental rights. The petition listed Father’s last known address and repeated 
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that address in the petition’s concomitant statement of facts. Similarly, that 

address was listed on the trial court order appointing counsel. Nevertheless, 

DHS neglected to serve Father notice of the petition at that, or any other, 

address. 

At the outset of the December 2, 2016 hearing on DHS’s petition,

Father’s counsel objected to the lack of service.1 DHS conceded that it failed 

to provide Father notice of the termination of parental rights proceedings, 

but justified the omission by referring to the unproductive PLS report. That 

is, DHS apparently reasoned that, since the PLS report did not reveal an 

address for Father, the agency was relieved from attempting to serve notice 

upon Father at any location, even the address listed in its records. During 

the ensuing discussion, David Coleman, the NET caseworker, explained that 

his agency had mailed correspondence to Father at the South 61st Street 

address and that Father failed to respond. Interpreting Mr. Coleman’s 

statements as confirmation that the address was not accurate, the trial court 

concluded that DHS’s PLS report constituted reasonable efforts to serve 

Father notice of the termination petition and the ensuing hearing. After the 

parties stipulated to Mr. Coleman’s proposed factual testimony, the court 

terminated Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), 

____________________________________________

1 Having had no notice, Father did not attend the hearing. 
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and (b).2 Significantly, the trial court mailed notice of the decree 

terminating Father’s parental rights to Father’s address of record, the precise

address that it permitted DHS to ignore. 

Father raises the following issues for review:3

A. Whether the court erred in failing to find that Father was not 

properly served with the petition for involuntary termination and 

the petition to change the goal to adoption, when Father was not 

served, when Father was not served at any of his addresses, and 

when mother was served at all of her previous and current 

addresses.

B. Whether the court erred in terminating Father's parental 

rights and changing the goal to adoption, when Father was not 

served, when Father was not served at any of his addresses, and 

when mother was served at all of her previous and current 

addresses with the petition for involuntary termination and the 

petition to change the goal to adoption.

C. Whether the errors committed by the court below deprived 

appellant of his rights to due process and equal protection under 

the law.

Father’s brief at 3. Neither DHS nor A.A.M.’s guardian ad litem filed briefs in 

this matter. 

We review an order terminating parental rights for legal error or an 

abuse of the trial court’s discretion. In re B.L.W., 843 A.2d 380, 383 

____________________________________________

2

The trial court terminated Mother’s parental rights to all three children, and 

it terminated the rights of the respective fathers of A.M. and B.L. as well. 

3 As the thirty-day appeal period expired on Sunday, January 1, 2017, 

Father had until the first regular business day after that to file his appeal. 

See 1 Pa.C.S. § 1908 (“Computation of time”). Accordingly, Father’s 

January 3, 2017 appeal is timely. 
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(Pa.Super. 2004) (en banc). Instantly, Father argues that DHS failed to 

serve notice of the involuntary termination hearing pursuant to 23 Pa.C.S. § 

2513(b), thereby violating his due process rights. For the following reasons, 

we agree. 

DHS bears the burden of proving proper service by its affirmative act, 

which includes a good faith effort to provide notice to a parent, at his or her 

correct address, of a termination hearing. In re Interest of K.B., 763 A.2d 

436, 439 (Pa.Super. 2000) (affirmative act); Appeal of J.T.M., 845 A.2d 

861, 865 (Pa.Super. 2004) (good faith effort). This Court recently 

summarized constitutional due-process in the context of proceedings to 

terminate parental rights. We explained, 

"Due process requires nothing more than adequate notice, 

an opportunity to be heard, and the chance to defend oneself in 

an impartial tribunal having jurisdiction over the matter." In re 

J.N.F., 887 A.2d 775, 781 (Pa.Super. 2005). "Due process is 

flexible and calls for such procedural protections as the situation 

demands." In re Adoption of Dale A., II, 683 A.2d 297, 300 

(Pa.Super. 1996) (quoting Sullivan v. Shaw, 650 A.2d 882, 

884 (Pa.Super. 1994)).

It is well settled that termination of parental rights 

implicates a parent's Fourteenth Amendment right to due 

process. See In the Interest of A.P., 692 A.2d 240, 242 

(Pa.Super. 1997) (stating that parents have a "fundamental 

liberty interest . . . in the care, custody, and management of 

their children") (citing Santosky v. Kramer, 455 U.S. 745, 753 

(1982)). An individual whose parental rights are to be 

terminated must be given due process of law, as the termination 

of parental rights is a constitutionally-protected action. See In 

re Interest of K.B., 763 A.2d 436, 439 (Pa.Super. 2000) (citing 

Santosky, supra).
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In re A.N.P., 155 A.3d 55, 66 (Pa.Super. 2017).

Section 2513(b) of the Adoption Act outlines a parent’s statutorilyprotected right to due process during termination proceedings. That 

provision provides:

At least ten days’ notice shall be given to the parent or parents, 

putative father, or parent of a minor parent whose rights are to 

be terminated, by personal service or by registered mail to his or 

their last known address or by such other means as the court 

may require. A copy of the notice shall be given in the same 

manner to the other parent, putative father or parent or 

guardian of a minor parent whose rights are to be terminated. A 

putative father shall include one who has filed a claim of 

paternity as provided in section 5103 (relating to 

acknowledgment and claim of paternity) prior to the institution 

of proceedings.

23 Pa.C.S. § 2513(b) (emphasis added). Thus, by its express terms, the 

Adoption Act required DHS to provide Father at least ten-days’ notice by 

personal service or registered mail to his last known address, which the 

agency had in its records. 

In addition to the foregoing statutory requirements, Pennsylvania 

Orphan’s Court Rule 15.6(a) governs the manner that notice of the 

involuntary termination petition must be served.4 Rule 15.6 provides as 

follows:

____________________________________________

4

Philadelphia County is unique among Pennsylvania’s Courts of Common 

Pleas insofar as adoption proceedings in that jurisdiction are heard in family 

court, juvenile division, rather than in orphans’ court. While the orphans’ 

court rules typically do not govern family court proceedings, this Court has 

(Footnote Continued Next Page)
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(a) Notice to every person to be notified shall be by personal 

service, service at his or her residence on an adult or member of 

the household, or by registered or certified mail to his or her 

last known address. If such service is unobtainable and the 

registered mail is returned undelivered, then:

. . . .

(2) in proceedings under Rules 15.4 [(regarding the 

involuntary termination of parental rights]) . . . further notice 

by publication or otherwise shall be given if required by 

general rule or special order of the local Orphans' Court. If, 

after reasonable investigation, the identity of a person to be 

notified is unknown, notice to him or her shall not be required.

Pa.O.C. Rule 15.6(a) (emphasis added); see also Rule 15.4(d). Again, 

consistent with the Adoption Act, Rule 15.6(a) contemplates service to the 

parent’s last known address and if service is unobtainable and the registered 

mail is returned undelivered, then the orphans’ court may permit notice by 

publication. It is clear from both the Adoption Act and the governing 

procedural rules that some form of notice is mandatory unless the identity of 

a person is unknown. See In re X.J., 105 A.3d 1, 7 n.8 (Pa.Super. 2014) 

(“The Adoption Act mandates that an individual whose parental rights may 

be terminated must be served with notice of an upcoming termination 

hearing. 23 Pa.C.S.A. § 2513(b).”).

(Footnote Continued) _______________________

applied orphans’ court rules to termination cases held in Philadelphia family 

court. See In re A.N.P., 155 A.3d 55, 66-67 (Pa.Super. 2017) (applying, 

inter alia, Orphans’ Court Rule 15.4 regarding notice and service of petition 

to terminate parental rights).
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In the instant case, DHS explained that it declined to serve Father 

notice of the termination hearing because its PLS report was ineffective. 

N.T., 12/2/16, at 5. The agency proffered no explanation as to why it failed 

to attempt service at Father’s last known address. However, relying upon 

Mr. Coleman’s testimony that Father did not respond to correspondence that 

his agency, NET, mailed to the 61st Street address, the trial court found that 

DHS’s PLS report constituted a reasonable effort to serve Father with notice 

of the petition. Id. at 8. 

Our review of the certified record will not sustain the trial court’s 

conclusion that DHS employed reasonable efforts when the agency failed to 

attempt service at Father’s last known address as required by both the 

statutory and procedural framework. Instantly, Father’s identity was known 

to DHS, and it possessed Father’s last known address, as evidenced by its 

several references to that address in the petition to terminate parental 

rights. DHS ignored this information and relying solely upon the fruitless 

PLS report, relinquished its statutory obligation to protect Father’s rights to 

due process. At a minimum, the agency was required to attempt service by 

certified mail before abandoning its efforts and failing to provide Father even 

notice by publication, as outlined in the rules. 

Unlike DHS, the trial court, NET, and Father’s court-appointed attorney 

mailed correspondence to Father at his last known address. Indeed, the trial 

court even mailed notice of the decree terminating Father’s parental rights 
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to that location. While DHS also possessed this address, which appeared 

throughout its termination petition, it declined to serve Father with notice of

the petition at that, or any other, location. Based on these facts, it is clear 

DHS failed to meet the minimum level of effort as required by both the 

Adoption Act and the governing rules of procedure. Thus, we find that the 

certified record does not support the trial court’s determination that DHS 

fulfilled its duty to engage in reasonable efforts to effectuate service. See 

In re Interest of K.B., supra at 439. 

Moreover, we reject the trial court’s inference that it would have been 

futile for DHS to attempt service at Father’s last known address. First, this 

Court is not bound by the trial court’s inferences. In re M.G., 855 A.2d 68, 

74 (Pa.Super. 2004). More importantly, the certified record does not 

support the implication that Father abandoned his South 61st Street 

residence. Mr. Coleman’s discussion regarding his prior interactions with 

that address established nothing more than the reality that the

correspondence NET mailed to Father at that location was delivered—

otherwise, it would have been returned to NET as undeliverable. Where 

correspondence is returned undelivered, the record undoubtedly supports 

the inference that the address is not accurate. However, that scenario did 

not occur herein. Instantly, the mail addressed to Father was, in fact, 

delivered, and therefore, Father’s failure to respond to NET’s correspondence 
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is at least as likely to reflect, if not illustrate, Father’s lack of interest in the 

termination proceedings rather than the inaccuracy of the address. 

The dichotomy between these two potential explanations for Father’s 

unresponsiveness illustrates why DHS’s omission is so crucial in this case. 

Had DHS actually mailed notice to Father’s last known address, as required 

by the statute, and Father still failed to attend the hearing, it would have 

established either that Father could not be located or that he received the 

notice and neglected to appear. Either of these results would have sustained 

the court’s conclusion that DHS employed reasonable efforts. As it is, 

however, the record supports nothing more than the fact that DHS failed to 

fulfill the minimum quantum of effort mandated under § 2513(b) and Rule 

15.6(a)(2).

Finally, considering the weight of the stipulated testimony adduced 

during the termination proceedings in favor of terminating Father’s parental 

rights pursuant to 2511(a) and (b) and the potential delay to the now-eightyear-old child’s adoption by her maternal aunt, we are understandably 

hesitant to vacate the trial court’s decree terminating Father’s parental 

rights. However, we observe that A.A.M. continues to thrive in kinship care 

along with her siblings, and we are confident that any delay associated with 

ensuring Father’s due process rights would not be detrimental to her 

wellbeing in light of the maternal aunt’s stated intent to continue to permit 

post-adoption contact with the family. Plainly, while judicial economy is a 
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noble pursuit, it does not outweigh the fundamental components of due 

process, i.e., notice and the opportunity to be heard. Unlike the trial court, 

we are unwilling to ignore DHS’s failure to serve, or attempt to serve, Father 

pursuant to § 2513(b) when Father’s most recent address was known to the 

agency. Therefore, we vacate the December 2, 2016, decree terminating 

Father’s parental rights and remand this case for a new proceeding that 

complies with § 2513(b). 

Decree vacated. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2017