J-S30044-18
2018 PA Super 200
IN RE: ADOPTION OF D.M.C. AND A.L.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: M.M.C., NATURAL MOTHER : No. 224 WDA 2018
Appeal from the Order Entered January 3, 2018
in the Court of Common Pleas of Cambria County
Orphans’ Court at No(s): 2017-791 & 792-IVT
BEFORE: BENDER, P.J.E, STABILE, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED JULY 09, 2018
M.M.C. (Mother) appeals from the January 3, 2018 order granting the
petitions of Cambria County Children and Youth Services (CYS) to terminate
involuntarily Mother’s parental rights to her minor children, D.M.C., born
December 2004, and A.L.C., born April 2013 (Children, collectively). 1 After
review, we vacate the order as to Mother without prejudice and remand for
proceedings consistent with this opinion.
The relevant procedural history and facts may be summarized as
follows. In April 2016, CYS opened services2 for Children due to allegations
of abuse and neglect. N.T., 12/7/2017, at 14-16; see also CYS Trial Exhibit
1 The orphans’ court also involuntarily terminated the parental rights of
Children’s respective fathers. Neither father has filed his own appeal or
participated in this appeal.
2 Mother and Children’s fathers had been previously involved with CYS
concerning not only Children here, but other children as well. Order,
1/3/2018, at ¶ 3; N.T., 12/7/2017, at 8, 12, 14; see also CYS Exhibit 5, at
3-4.
*Retired Senior Judge assigned to the Superior Court.
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7. Shortly thereafter, Mother was evicted from her apartment for failure to
pay rent and utilities. After shelter and dependency hearings on June 15,
2016, the juvenile court adjudicated Children dependent and ordered
Children removed from Mother’s home based on findings of inadequate
shelter, a bedbug infestation, financial instability, transiency, and allegations
of sexual abuse of D.M.C. by Mother.3 CYS Trial Exhibit 7. The goal was
reunification.
Throughout the proceedings before the juvenile court, Mother was
ordered, inter alia, to receive a psychological evaluation, successfully
complete parenting skills classes, fully cooperate with Independent Family
Services Home Management (IFS) until successfully discharged, eradicate
bedbugs from her home and belongings, maintain a clean, safe, and
adequately furnished home for at least six months, pay rent, utilities, and
other bills on time, ensure all utilities are in proper working order at all
times, complete sexual offender treatment, and attend outpatient mental
health counseling. Id.
By August 2017, Children had been in foster care for 15 of the prior 22
months. Id. Despite extensive assistance from numerous agencies and
3 Mother pled guilty on October 26, 2017 to indecent exposure, 18 Pa.C.S.
§ 3127(a), relating to Mother forcing D.M.C. to take pictures of her naked in
sexual positions. N.T., 12/7/2017, at 16, 23, 25-26; see also CYS Exhibit 8.
This resulted in an indicated report of child abuse with ChildLine pursuant to
23 Pa.C.S. Chapter 63 (Child Protective Services). The remaining charges
were nol prossed. Id. She was ordered to complete sexual offender
treatment, but failed to do so. N.T., 12/7/2017, at 20-21, 109.
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providers, Mother never made more than minimal progress toward
alleviating the circumstances which necessitated original placement and had
achieved only minimal compliance with the permanency plan. Order,
1/3/2018, at 3-5; CYS Trial Exhibits 5, 7. Although initially cooperative,
during the last months of assistance, Mother became hostile and
uncooperative. N.T., 12/7/2017, at 20, 87. While she briefly worked at
McDonald’s for about one month, at the August 2017 permanency review
hearing she remained unemployed and homeless. Id. at 21. Further, she
had been discharged from IFS and mental health counseling for
noncompliance, and had not completed her required sexual offender
treatment. Id. at 20-21, 109. Based on the foregoing, the juvenile court
changed Children’s placement goal to adoption.
On September 7, 2017, CYS filed petitions to terminate involuntarily
Mother’s parental rights to Children pursuant to 23 Pa.C.S. §§ 2511(a)(1),
(2), (5), and (8) of the Adoption Act.4 A hearing was held on December 7,
2017. Five witnesses testified, including Mother, a CYS caseworker, the
psychologist who conducted a psychological evaluation of Mother, and two
providers of family and/or in-home services. On January 3, 2018, the
4 CYS also petitioned the orphans’ court to terminate involuntarily parental
rights of Children’s fathers. See n.1, supra. Further, while the orphans’
court January 3, 2018 order indicates that CYS filed petitions to terminate
involuntarily parental rights on September 17, 2017 (Order, 1/3/2018, at 1),
the certified record shows the petitions were filed on September 7, 2017.
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orphans’ court terminated Mother’s parental rights to Children. This appeal
followed.5
Before we reach the issues presented by Mother on appeal, we address
sua sponte whether Attorney Gregory J. Neugebauer’s representation of
Children satisfies the requirement of 23 Pa.C.S. § 2313(a). See In re
K.J.H., 180 A.3d 411 (Pa. Super. 2018) (holding that this Court must raise
sua sponte child’s right to counsel). Children have a statutory right to
counsel in contested involuntary termination proceedings:
The court shall appoint counsel to represent the child in an
involuntary termination proceeding when the proceeding is being
contested by one or both 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.
23 Pa.C.S. § 2313(a).
Our Supreme Court held in In re Adoption of L.B.M., 161 A.3d 172,
180 (Pa. 2017), that the orphans’ court must appoint counsel who is
directed by the child to represent the legal interests of a child involved in a
contested involuntary termination proceeding pursuant to this subsection.
As our Supreme Court held, a child’s legal interests are synonymous with the
5 Both Mother and the orphans’ court complied with Pa.R.A.P. 1925. The
orphans’ court adopted its January 3, 2018 order and opinion as its Rule
1925(a) opinion.
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child’s preferred outcome, while a child’s best interests must be determined
by the court. L.B.M., 161 A.3d at 174.
This Court has interpreted L.B.M. as permitting a child’s guardian ad
litem to serve also as his or her legal counsel, so long as there is no conflict
between a child’s best and legal interests. In re D.L.B., 166 A.3d 322, 329
(Pa. Super. 2017).
Our review of the certified record does not reveal what role Children’s
attorney served. The orphans’ court appointed Devon A. Malloy, Esquire as
attorney for Children in the termination proceedings.6 See Order Setting
Hearing, 10/9/2017, at 1. The order refers to Attorney Malloy as “court-
appointed counsel.” Attorney Malloy later withdrew and the orphans’ court
appointed Attorney Neugebauer. See Motion for Leave of Court to Withdraw
as Court-Appointed Counsel and Petition to Appoint New Counsel and Order,
11/13/2017, at 1. Once again, this order refers only to representing
Children,7 but does not indicate whether this representation is for Children’s
legal or best interests, or both.
6 The dependency orders entered into the record at the termination hearing
show Paul Eckenrode, Esquire and Timothy Sloan, Esquire served as
Children’s guardian ad litem in the dependency matters before the juvenile
court. See CYS Trial Exhibit 7.
7 The order states “Gregory Neugebauer, Esquire is appointed to represent
the alleged incapacitated person children in the above captioned matter
moving forward.” See Motion for Leave of Court to Withdraw as Court-
Appointed Counsel and Petition to Appoint New Counsel and Order,
11/13/2017, at 1 (verbatim). The strike-through and handwritten word
Footnote Continued Next Page
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Compounding this uncertainty is Attorney Neugebauer’s inconsistent
use of his title in filings with the orphans’ court and this Court. In
petitioning the orphans’ court for approval of fees, he referred to himself as
“Counsel for the Children,” “Attorney for the Children,” and “Court-Appointed
Attorney.” See Petition for the Approval of Fees, 1/8/2018, at cover page,
1-2 (unnumbered). However, in filing his brief before this Court, he titled
the brief and signed as guardian ad litem for Children. See Brief of
Guardian Ad Litem for Appellees, D.M.C. and A.L.C., 4/26/2018, at cover
page and 7.
Further, Mother’s attorney, Richard M. Corcoran, Esquire, in filing her
notice of appeal with the orphans’ court, indicated on the certificate of
service Attorney Neugebauer’s role as guardian ad litem for Children. See
Notice of Appeal, 2/5/2018, at 7 (unnumbered). But when Mother filed her
brief before this Court, the certificate of service indicated Attorney
Neugebauer as “Attorney for Children.” See Brief of Appellant, 4/5/2018, at
8.
Moreover, nowhere in the transcript of the December 7, 2017
termination hearing does the orphans’ court note for the record whether its
appointment of Attorney Neugebauer is as counsel representing Children’s
legal interests or as guardian ad litem representing their best interests. Our
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Footnote Continued from Previous Page
“children” suggest a boilerplate form was used without due consideration of
Attorney Neugebauer’s role.
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review of the hearing transcript shows the following regarding Attorney
Neugebauer’s role. He cross-examined two of the five witnesses, but did not
introduce any witnesses or evidence. During the hearing, he referred to
himself as “counselor for the children” or prefaced his statements with “on
behalf of the children.” N.T. 12/7/2017, at 81, 112, 118.
At the end of the hearing, the orphans’ court permitted Attorney
Neugebauer to make a statement:
On behalf of the children, respectfully, first, I’d like to tell
the [c]ourt I did have the opportunity to speak with [D.M.C.]. I
spoke with him on the phone last night, actually.[8] Very
energetic young man even on the phone. For 12 years old, he
communicated pretty well with me.
He did indicate that he loves his mom. I asked him if he
understood what today was about. He indicated that he did.
And I believe he did. I think his ultimate opinion, based on my
limited conversation with him, is that he’s ready for
permanency. And, unfortunately, [Mother] and neither of the
fathers can offer him that type of permanency.
They’ve been in placement a long time, Your Honor. I
know [Mother] says housing is well on its way. I think we’re a
little past that point already. I did a rough calculation. She
doesn’t have any employment and no prospect. Hopefully she
gets Social Security. Where it stands now, if her fiancé, who has
no financial obligation to these kids and on whom she’s going to
8 Ascertaining a child’s position about important and sensitive matters such
as his relationship with his mother is no easy task. Although it is not clear
from Attorney Neugebauer’s statement, it appears from the record that his
only interaction with D.M.C. was this one limited conversation over the
telephone. It further appears from the record that Attorney Neugebauer had
no interaction whatsoever with A.L.C. Not only must counsel consult directly
with his or her clients, but we strongly encourage counsel for children to do
all he or she can to cultivate a relationship with his or her clients and not
rely on such brief and impersonal interactions.
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rely, if he makes $11 an hour at McDonald’s, which I think is
being generous, a rough estimate, that’s about $23,000 a year
before taxes or anything else. I don’t think $23,000 a year in
total income with somebody not obligated to the kids is going to
get the kids what they need. I just don’t see that happening.
I do believe there’s a bond between [Children] and
[Mother]. However, I don’t think severing that bond would be
negative to their interests. I think it’s actually at this point in
their best interests, so that they get the permanency.
The other thing I’d say is that I hope that CYS would
encourage whoever the permanent adoptive parents are, maybe
they’d promote PACA [post-adoption contact agreement]. I
think in this instance, I think that’s something that would be
good for the boys, particularly, [D.M.C.]. I think it would be
good for the boys. They know [Mother]. They love [Mother].
While [Mother] may not be the best for them long-term to care
for their daily needs, I think that relationship should be
maintained even if it’s a minimum. Thank you.
Id. at 118-19 (emphasis added).
Attorney Neugebauer indicated in his brief to this Court that D.M.C.
wants to be adopted but wants continued contact with Mother. Brief of
Guardian Ad Litem for Appellees, D.M.C. and A.L.C., 4/26/2018, at 7. While
the record shows Attorney Neugebauer briefly conferred with D.M.C., then
just shy of 13 years old, as to his preferred outcome for permanency, we
cannot discern from the record whether D.M.C. fully understood during the
limited telephone call with Attorney Neugebauer that his adoption would
mean, absent a post-adoption contact agreement (PACA), that his
relationship with Mother would be legally and permanently severed. Even
though Attorney Neugebauer advocated for PACA and a continued
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relationship with Mother, it is by no means guaranteed. It is unclear
whether D.M.C. would continue to prefer adoption if his adoptive family did
not support PACA or informally arranged post-adoption visitation.
Caseworker Barb Brzana testified, in response to questioning from
Attorney Neugebauer, that she was in favor of Children’s continued contact
with Mother post-adoption and had begun to discuss it with Mother. N.T.,
12/7/2017, at 44. Brzana testified that D.M.C. hoped his potential adoptive
family would allow contact with Mother, but A.L.C. did not express any
interest, possibly due to his age (then about four-and-one-half years). Id.
at 44-45. At the time of the hearing, Children had not yet been placed with
a potential adoptive resource, but they had been visiting with a foster family
who could provide permanency. Id. at 30. Children were moving the
following day to live with this family. Id. Therefore, at that time, there was
no way of knowing whether the potential adoptive family would support
PACA or even an informally arranged post-adoption contract, and if not,
whether D.M.C.’s preferred outcome of permanency would change. See In
re Adoption of G.L.L., 124 A.3d 344, 348 (Pa. Super. 2015) (noting that
PACA is a purely voluntary agreement requiring the consent of the adoptive
parents). Thus, based upon the facts of this particular case, there is a
potential conflict between the position advanced by Attorney Neugebauer
and the position expressed by D.M.C.
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Regarding A.L.C., we are unable to locate any place in the record
where Attorney Neugebauer set forth A.L.C.’s preferred outcome.9 We
likewise do not find any evidence that Attorney Neugebauer met with or
interviewed A.L.C., nor did Attorney Neugebauer indicate that he was unable
to ascertain A.L.C.’s preferred outcome due to his age, development, or
other reason. Rather, Attorney Neugebauer advocated for the orphans’
court to grant CYS’s petitions because he believes termination is in
Children’s best interests. N.T., 12/7/2018, at 118-19.
In In re Adoption of T.M.L.M., __ A.3d. __, 2018 WL 1771194 at *4
(Pa. Super. Apr. 13, 2018), we held that remand was required when a nearly
six-year-old child’s preference was unclear and the child’s counsel had
neglected to interview the child to determine whether the child’s best and
legal interests aligned. As we observed:
9 A.L.C.’s position at the time of the hearing is not readily discernible from
the record. Caseworker Brzana expressed her opinion at the hearing that
A.L.C. may have been too young to express his preferred outcome. N.T.,
12/7/2017, at 31, 44. Indications of what A.L.C.’s position might be are as
follows: (1) A.L.C. enjoys visits with Mother, id. at 31, 85-86; (2) A.L.C.
enjoys spending time with his foster family, id. at 31; (3) A.L.C. used to
throw temper tantrums when visits with Mother ended, but that behavior
stopped as visits continued, id. at 93-94; see also CYS Trial Exhibit 15; (4)
A.L.C. “knows he can’t go home” with Mother, N.T., 12/7/2017, at 31; see
also CYS Trial Exhibit 11; (5) during supervised visits, A.L.C. runs to give
Mother a hug, CYS Trial Exhibit 15; (6) A.L.C. “appeared happy to see”
Mother at supervised visits, N.T., 12/7/2017, at 92; (7) A.L.C. sometimes
plays by himself during Mother’s supervised visits, but also enjoys playing
with Mother, id. at 32.
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We recognize that attorneys may encounter unique challenges
when representing children that are different from the challenges
they may encounter when representing adults, particularly when
the representation concerns such sensitive subject matter.
Nevertheless, counsel representing children must represent their
clients with zeal and professionalism. Children have no say in
appointment of counsel and deserve to have the benefit of
effective representation, particularly when a matter as important
as their future relationship with a biological parent is at stake.
Not only do children not have a say in the appointment of
counsel, due to their minority, most children are not in a position
to assess whether counsel has represented their interests
effectively.
***
Like adult clients, effective representation of a child requires, at
a bare minimum, attempting to ascertain the client’s position
and advocating in a manner designed to effectuate that position.
T.M.L.M., 2018 WL 1771194 at *4 (internal citation and quotation marks
omitted).
At the time of the hearing, D.M.C. was a few weeks shy of his
thirteenth birthday and A.L.C. was about four and one-half years old. While
Attorney Neugebauer did have a limited conversation over the telephone
with D.M.C., is it unclear what D.M.C.’s preferred outcome is absent PACA.
Further, and significantly, we do not find any indication in the record that
Attorney Neugebauer ever attempted to ascertain A.L.C.’s position. While
A.L.C. may not have been old enough to actively participate in Attorney
Neugebauer’s representation of him,10 and it is possible A.L.C. was too
10Rather than this Court making assumptions about a child’s capabilities, it
would be far better for the trial court in the first instance to consider this
Footnote Continued Next Page
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young to clearly express his position, A.L.C. likely had feelings about
permanency. Attorney Neugebauer should have attempted to ascertain
those feelings to determine whether A.L.C. had a preferred outcome and was
capable of directing Attorney Neugebauer’s representation at least to some
extent.11 See id.
For the foregoing reasons, we conclude that we are unable to
determine from the record whether Children received the benefit of their
statutorily-required right to client-directed counsel serving their legal
interests. Nothing in the record indicates definitively that the orphans’ court
appointed Attorney Neugebauer as such legal counsel. Moreover, nothing in
the record indicates definitively that Attorney Neugebauer advocated for
Children’s legal interests and followed the direction of Children.
We recognize that Children have been in foster care for two years at
this point, and would benefit from achieving permanency. As was the case
in T.M.L.M., 2018 WL 1771194 at *4, we likewise here do not wish to
prolong the uncertainty of Children’s future, but we are constrained to
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Footnote Continued from Previous Page
issue prospectively and analyze each child individually. We note that a
legal-interest attorney, separate from a best-interest attorney, need not be
appointed for a child who is unable to articulate a position to legal counsel
because, in that situation, there is no conflict between the child’s legal and
best interests. See D.L.B., 166 A.3d at 329.
11 We note that Pa.R.P.C. 1.14 addresses representation of clients with
diminished capacity.
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vacate the order terminating Mother’s parental rights and remand for further
proceedings.
On remand, we direct the orphans’ court to appoint client-directed
legal-interests counsel for the Children forthwith. It is incumbent upon such
counsel to attempt to ascertain Children’s preferred outcome as to Mother by
interviewing Children directly, and to follow Children’s direction to the extent
possible and advocate in a manner that comports with Children’s legal
interests. Legal-interests counsel should discern from D.M.C. whether he
continues to prefer adoption if his adoptive family does not support
continued contact with Mother. If A.L.C. is indeed too young to express
clearly his position as to Mother or direct counsel’s representation to any
extent, counsel shall notify the orphans’ court. Such legal-interests counsel
may also serve as guardian ad litem only if a conflict-of-interest analysis by
the orphans’ court reveals commonality between Children’s best and legal
interests, and this should be noted on the record. See L.B.M., 161 A.3d at
183-93 (a majority of our Supreme Court concluding counsel may serve in
both a best- and legal-interests capacity for child so long as there is no
conflict between those interests); see also D.L.B., 166 A.3d at 329
(interpreting L.B.M. and finding “such separate representation would be
required only if the child’s best interests and legal interests were somehow
in conflict”).
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Once Children’s preferred outcomes as to Mother are identified,
Children’s counsel shall notify the orphans’ court whether termination of
Mother’s parental rights is consistent with Children’s legal interests. If
Children’s preferred outcomes as to Mother are consistent with the result of
the prior termination proceeding, the orphans’ court shall reenter its
January 3, 2018 order as to Mother. If Children’s preferred outcomes as to
Mother are in conflict with the prior termination proceeding, the orphans’
court shall conduct a new termination hearing as to Mother to provide
Children’s counsel an opportunity to advocate on behalf of Children’s legal
interests. See T.M.L.M., 2018 WL 1771194 at *4 (finding that the orphans’
court shall conduct a new hearing if it serves the “substantive purpose” of
providing child with an opportunity to advance his legal interests through his
new counsel). We observe that Children may have differing preferred
outcomes as to Mother, in which case Children’s legal counsel shall inform
the orphans’ court, and the court shall appoint separate legal-interests
counsel for each child and conduct further proceedings consistent with this
opinion.
Order vacated as to Mother without prejudice to permit the orphans’
court to reenter the original order if a new termination hearing is not
required. Case remanded for proceedings consistent with this opinion.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/2018
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