NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37
MEMORANDUM BY BOWES, J.
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 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:
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 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.
Father raises the following issues for review:
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.
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.
Section 2513(b) of the Adoption Act outlines a parent's statutorily-protected right to due process during termination proceedings. That provision provides:
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.
Pa.O.C. Rule 15.6(a) (emphasis added);
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.
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 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.
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.
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-eight-year-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 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.