J-S28011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.B.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.K.D., FATHER :
:
:
:
:
: No. 119 MDA 2018
Appeal from the Decree December 21, 2017
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2017-02173
IN RE: U.S.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.K.D., FATHER :
:
:
:
:
: No. 163 MDA 2018
Appeal from the Decree December 21, 2017
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2174 of 2017
IN RE: N.M.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.K.D., FATHER :
:
:
:
:
: No. 164 MDA 2018
Appeal from the Decree December 21, 2017
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2175 of 2017
IN RE: B.M.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S28011-18
:
APPEAL OF: B.K.D., FATHER :
:
:
:
:
: No. 165 MDA 2018
Appeal from the Decree December 21, 2017
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2176 of 2017
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 07, 2018
Appellant, B.K.D. (Father), appeals from the decree entered on
December 21, 2017, involuntarily terminating his parental rights to four
children, K.B.D. (a male, born in January, 2009), U.S.D. (a male, born in
September, 2010), N.M.D. (a female, born in June 2012), and B.M.D. (a male,
born in November, 2014) (collectively, the Children). Upon review of the
record and recent, applicable case law, we are constrained to vacate the
decrees without prejudice and remand this case for further proceedings
consistent with this memorandum. The trial court summarized the facts of
this case as follows:
[The Lancaster County Children and Youth Services Agency (the
Agency)] received a report, on November 4, 2016, that the
[C]hildren were living with their paternal grandparents and the
grandparents, having serious medical issues, could no longer care
for the [C]hildren. At the time of the report, Father was
incarcerated and Mother’s[1] whereabouts were unknown. The
[A]gency offered assistance to allow the [C]hildren to remain in
____________________________________________
1Mother, J.L.P., does not appeal the termination of her parental rights and is
not a party to the instant appeal.
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their home, but the grandparents requested the [C]hildren be
removed. The [A]gency has a prior history with this family. In
2014, there were reports of suspected drug abuse by both
parents. […I]n 2016, Father was at the hospital with one of the
children and was unable to give the child’s name or date of birth.
Trial Court Opinion, 1/26/2018, at *2 (unpaginated).
Procedurally, the case progressed as follows:
[O]n November 9, 2016, [the Agency] petitioned for and received
physical custody of [the Children]. A [s]helter [c]are [h]earing
was held on November 11, 2016 and [Mother] was not present.
[Father] was present and waived the [s]helter [c]are [h]earing
without admitting any of the allegations set forth in the Agency’s
petition for custody. An [a]djudication and [d]isposition hearing
was held on December 15, 2016, finding the [C]hildren
dependent.[2] The [trial c]ourt approved Child Permanency Plans
(“CPP”) containing objectives for both parents. On October 2,
2017, the Agency petitioned to terminate the parental rights of
Father and Mother to the [C]hildren pursuant to 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), and (8). A hearing on the termination
petition was held on December 21, 2017, resulting in the [trial
c]ourt issuing a decree involuntarily terminating Mother’s and
Father’s rights to the [C]hildren.
Id. at *1. This timely appeal resulted.3
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2 Upon review of the record, the trial court appointed Cynthia L. Garman,
Esquire as guardian ad litem (GAL) for the Children. Attorney Garman was
present at the termination hearing and examined witnesses on behalf of the
Children. At the end of the termination proceeding, Attorney Garman opined
that it was in the Children’s best interests for the trial court to involuntarily
terminate the parental rights of Mother and Father. N.T., 12/21/2017, at 94.
3 On January 19, 2018, Father filed a notice of appeal and corresponding
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i). The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a)
on January 26, 2017.
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Recently, and applicable herein, a panel of our Court issued a published
opinion which addressed a child’s statutory right to the appointment of legal
counsel. See In re K.J.H., 180 A.3d 411 (Pa. Super. 2018). Therein, we
examined 23 Pa.C.S.A. § 2313 and our Supreme Court’s divided decision in
In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) and explained that
children have a clear statutory right to mandatory appointment of counsel to
represent their legal interests in termination of parental rights proceedings.
Because the failure to appoint legal counsel has been deemed a structural
error, this Court, based upon the minor status of affected children, must raise
the failure to appoint statutorily-required legal counsel for children sua sponte.
The L.B.M. Court, however, could not agree as to whether an attorney
appointed to represent a child as a guardian ad litem could also represent a
child’s legal interests.4 Justice Wecht, joined by Justices Donohue and
Doughtery, believed “the trial court is required to appoint a separate,
independent attorney to represent a child's legal interests even when the
child's GAL, who is appointed to represent the child's best interests, is an
attorney. Justice Wecht would hold that the interests are distinct and require
separate representation.” In re D.L.B., 166 A.3d 322, 329 (Pa. Super. 2017).
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4 “[A] child's legal interests [] are synonymous with the child's preferred
outcome[.]” In re Adoption of L.B.M., 161 A.3d at 174.
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Chief Justice Saylor authored a concurrence in L.B.M., joined by Justice
Todd, suggesting that, “a child's legal and best interests may be
indistinguishable, including, most notably, cases involving children who are
too young to express their wishes.” L.B.M., 161 A.3d 172, 184 (Pa. 2017)
(Saylor, concurring). Chief Justice Saylor opined that, “[i]n such
circumstances, mandating the appointment of separate counsel seems
superfluous and potentially wasteful.” Id. (footnote omitted). Instead, Chief
Justice Saylor suggested, “the propriety of permitting the same individual to
serve in both capacities[, as GAL and legal interest counsel,] should be
determined on a case-by-case basis, subject to the familiar and well-settled
conflict of interest analysis.” Id. (Saylor, concurring).
Justice Baer issued a dissent in L.B.M., opining that “it would be a better
practice for courts in every contested termination proceeding to place an order
on the record formalizing the appointment of counsel to highlight for all parties
the responsibility for the representation of the child's legal interests, while
simultaneously permitting that attorney to serve as the child's GAL so long as
there is no conflict of interest between the child's legal and best interests.”
Id. at 188 (Baer, dissenting).
Justice Mundy also dissented in L.B.M., opining that she believed the
appointment of a GAL, who is an attorney, satisfies the statutory mandate to
appoint legal counsel to represent children in contested termination
proceedings. Id. at 191 (Mundy, dissenting).
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Thus, “while the [concurring and dissenting opinions in L.B.M.] agreed
that the appointment of counsel for [a] child is required in all [termination of
parental rights] cases [], they did not join that part of Justice Wecht's opinion
which sought to hold that the [GAL] may never serve as counsel for the child.”
In re D.L.B., 166 A.3d at 329. “Rather, such separate representation would
be required only if the child's best interests and legal interests were somehow
in conflict.” Id.
Here, Attorney Garman advised the trial court that termination of
Father’s parental rights was in the Children’s best interests. Nevertheless,
despite Attorney Garman’s assurances to the trial court that she could serve
the Children as both GAL and legal counsel,5 she never advanced the
Children’s legal interests or provided evidence of the Children’s preferred
outcomes in the termination proceedings. Moreover, Attorney Garman did not
indicate she was unable to ascertain the Children’s preferences because of age
or level of development. As such, the record does not substantiate that the
Children’s statutory right to legal counsel was observed. Hence, we are
constrained to vacate the decrees without prejudice and remand for the
appointment of new counsel to represent the Children’s legal interests. See
In re Adoption of T.M.L.M., 2018 WL 1771194, at *4 (Pa. Super. 2018)
(remanding for the appointment of separate legal-interests counsel when the
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5 See N.T., 12/21/2017, at 78.
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guardian ad litem indicated that she could act as both guardian ad litem and
legal-interests counsel for the child, but failed to consult with the child or
otherwise state the child’s preferred outcome on the record). After reviewing
the prior proceedings and appropriately consulting with each child,
legal-interests counsel shall notify the trial court whether the result of the
prior proceedings was consistent with each child’s legal interest or whether
counsel believes a new hearing is necessary to advocate separate preferred
outcomes or placements for the Children. Id. The trial court shall conduct a
new hearing only if it serves the “substantive purpose” of providing the
Children with an opportunity to advance their legal interests through new
counsel. Id. If, however, a new hearing is deemed unwarranted, the trial
court may re-enter the original decrees.
Decrees vacated without prejudice. Case remanded for the appointment
of legal counsel and additional proceedings consistent with this memorandum.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2018
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In Re: K.B.D., a Minor
Combined Opinion