J-S37016-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.L.S., MOTHER :
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: No. 813 EDA 2018
Appeal from the Order Entered February 28, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0001130-2017,
CP-51-DP-0002989-2015
BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED AUGUST 15, 2018
C.L.S. (“Mother”) appeals from the decree entered on February 28, 2018
terminating her parental rights to her dependent, minor daughter, A.S.
(“Child”) (born in May of 2012) under the Adoption Act, 23 Pa.C.S. § 2511,
and the order changing Child’s permanency goal to adoption under the
Juvenile Act, 42 Pa.C.S. § 6351.1 We are constrained to vacate and remand
for further proceedings consistent with this Memorandum.
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1 Child has three siblings, Sibling 1 (K.S.E.) (born in July 2009), Sibling 2
(A.S.S.) (born in September of 2015), and Sibling 3 (K.) (born in March of
2017), who was eleven months old at the time of the hearing on February 28,
2018, and had been in care since birth. See N.T., 2/28/18, at 33. Child and
Sibling 2 are in the same foster home, while Sibling 1 and Sibling 3 are in a
separate foster home. See N.T., 1/10/18, at 34-35, 40, 82, 90. On January
10, 2018, the trial court terminated Mother’s parental rights with regard to
Sibling 1 and Sibling 2, and changed their permanency goals to adoption.
Mother filed appeals from these decrees and orders (see 518 EDA 2018 and
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* Former Justice specially assigned to the Superior Court.
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As our disposition is based on the procedural posture of this case, we
do not set forth the factual background, and adopt the factual background and
procedural history at set forth in the trial court opinion. On November 20,
2017, the Philadelphia Department of Human Services (“DHS”) filed petitions
to terminate the parental rights of Mother and Father to Child, who was born
in May of 2012, and to change Child’s permanency goal to adoption. The trial
court appointed legal counsel for Child, Attorney Edward Millstein, and a
guardian ad litem (“GAL”) for Child, Attorney Lue Frierson (the Child
Advocate). N.T., 1/10/18, at 7. Both Mother and Father contested the
petitions. The trial court appointed Attorney Chenille Truitt to represent
Mother, and Attorney Carla Beggin to represent Father.
On January 10, 2018, the trial court held an evidentiary hearing on the
petitions.2 Both Attorney Millstein and Attorney Frierson were present at the
first day of hearing. DHS presented the testimony of the Community Umbrella
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519 EDA 2018), which are not before the Court in this appeal. On February
28, 2018, the trial court issued an aggravated circumstances order for Sibling
3. Trial Court Opinion (A.S.), 4/6/18, at 1, n.1. The instant appeal does not
involve a challenge to that order. On February 28, 2018, the trial court
terminated the parental rights of Child’s father, A.J., (“Father”), and any
unknown, putative father to Child. Neither Father nor any putative father filed
an appeal from the termination of his parental rights and the change of Child’s
permanency goal to adoption, nor is any of these individuals a party to the
instant appeal. Trial Court Opinion (A.S.), 4/6/18, at 6, n.5.
2Mother and Father were present and represented by their respective counsel,
but Father’s counsel became ill. The trial court had to schedule a second day
of hearing for February 28, 2018, with regard to the termination of Father’s
parental rights to Child and the goal change petition regarding Child.
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Agency (“CUA”) Wordsworth social worker, Miyoshi Contee. Attorney
Frierson, Attorney Millstein, and Attorney Truitt conducted cross-examination.
N.T., 1/10/18, at 45-53. Mother then testified on her own behalf. The parties’
counsel did not conduct cross-examination, but the trial court questioned
Mother. Attorney Frierson conducted re-cross examination. Id. at 71-72.
DHS made a closing statement. Attorney Frierson made a closing statement,
in which Attorney Millstein concurred. Mother’s counsel requested additional
time for her client to comply with her Single Case Plan and the Permanency
Plan objectives, and the trial court’s permanency review orders. The trial
court held in abeyance its decision on the termination of Mother’s parental
rights and goal change for Child until after the presentation of evidence
regarding Father as to termination of his parental rights and the goal change
for Child. Id. at 80-82.
At the hearing on February 28, 2018, Attorney Frierson was present,
but Attorney Millstein was not present. Attorney Truitt and Mother were
present. Attorney Beggin was present but Father was not present, although
he had signed a subpoena that DHS served on him. N.T., 2/28/18, at 5. The
trial court admitted DHS exhibits into the record. DHS presented the
testimony of Ms. Contee. Attorney Frierson conducted cross-examination, and
counsel for DHS conducted re-direct examination. Id. at 19-20. With regard
to Sibling 3, DHS conducted direct examination of Ms. Contee, and Attorney
Truitt cross-examined her. Mother testified on her own behalf. On February
28, 2018, the trial court entered the decree that terminated the parental rights
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of Mother to Child pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8), and (b), and the order that changed Child’s permanency goal to
adoption under the Juvenile Act, 42 Pa.C.S.A. § 6351. On March 12, 2018,
Mother timely filed a notice of appeal and concise statement pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).
This Court has recently held that we will address sua sponte the failure
of a trial court to appoint counsel pursuant to 23 Pa.C.S.A. 2313(a). See In
re K.J.H., 180 A.3d 411, 414 (Pa. Super. 2018) (filed February 20, 2018).
Our Supreme Court, in In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017)
(plurality), held that 23 Pa.C.S.A. 2313(a) requires that counsel be appointed
to represent the legal interests of any child involved in a contested involuntary
termination proceeding. The court defined a child’s legal interest as
synonymous with his or her preferred outcome. The L.B.M. Court did not
overrule this Court’s holding in In re K.M., 53 A.3d 781 (Pa. Super. 2012),
that a GAL who is an attorney may act as counsel pursuant to Section 2313(a)
as long as the dual roles do not create a conflict between the child’s best
interest and legal interest.
The trial court did appoint legal counsel for Child in this matter, Attorney
Millstein. He was present at the January 10, 2018 hearing, and he conducted
cross-examination of the DHS witness. Child’s GAL, Attorney Frierson, was
present at both days of the hearing, and she conducted cross-examination of
witnesses. There is nothing in the record, however, to demonstrate that either
Attorney Millstein or Attorney Frierson interviewed Child to ascertain her
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preferred outcome. In fact, Attorney Millstein stated at the commencement
of the hearing on January 10, 2018 that he believed he was appointed to
represent only Sibling 1. N.T., 1/10/18, at 7. The trial court corrected
Attorney Millstein and stated that he was appointed as legal counsel to
represent Sibling 1, as well as Child and Sibling 2. Id. Attorney Millstein is
not among the individuals listed as present at the second day of hearing. We
are constrained to vacate the decree and order in this matter, and remand for
further proceedings. See In re T.M.L.M., 184 A.3d 585 (Pa. Super. 2018)
(filed April 13, 2018) (vacating and remanding for further proceedings when
six-year-old child’s preference was equivocal and the attorney neglected to
interview the child to determine whether legal and best interests were in
conflict); In re: Adoption of: D.M.C. and A.L.C., ___ A.3d ___, 2018 PA
Super 200 (Pa. Super. 2018) (filed July 9, 2018) (vacating and remanding for
further proceedings where the children’s legal counsel had a limited
conversation over the telephone with a child who was almost thirteen years
old, but the child’s preferred outcome was not clear from the record, and
counsel had no conversation to ascertain the younger, four-year-old child’s
preferred outcome); In re: Adoption of: M.D.Q., ___ A.3d ___, 2018 PA
Super 199 (Pa. Super. 2018) (filed July 6, 2018) (vacating and remanding
where this Court was unable to ascertain from the record whether the
appointed counsel represented the subject children’s legal interests and
ascertained their preferred outcomes, but appeared to have speculated as to
their preferred outcomes, and this Court could not determine the Children’s
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legal interests from the record. In fact, the record appeared to suggest a
conflict between termination of the mother’s parental rights to the older,
eight-year-old child, and that child’s preferred outcome).
On remand, we direct the trial court to appoint new legal counsel and
re-appoint the same GAL for Child forthwith. It is incumbent upon such
counsel to attempt to ascertain Child’s preferred outcome as to Mother by
interviewing Child directly, and to follow Child’s direction to the extent possible
and advocate in a manner that comports with Child’s legal interests. Legal
counsel should discern from Child whether she prefers adoption by her foster
parent if her adoptive family does not support continued contact with Mother.
If Child is indeed too young to express clearly her position as to Mother or
direct counsel’s representation to any extent, counsel shall notify the trial
court. Once Child’s preferred outcome as to Mother is identified, Child’s legal
counsel shall notify the trial court whether termination of Mother’s parental
rights is consistent with Child’s legal interests. If Child’s preferred outcome
as to Mother is consistent with the result of the prior termination proceeding,
the trial court shall re-enter its February 28, 2018 decree and order as to
Mother. If Child’s preferred outcome as to Mother is in conflict with the prior
termination proceeding, the trial court shall conduct a new termination/goal
change hearing as to Mother to provide Child’s legal counsel an opportunity to
advocate on behalf of Child’s legal interest. See T.M.L.M., supra, (finding
that the orphans’ court shall conduct a new hearing if it serves the
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“substantive purpose” of providing child with an opportunity to advance his
legal interests through his new counsel).
Order vacated as to Mother without prejudice to permit the trial court
to re-enter the original decree and order if a new termination/goal change
hearing is not required. Case remanded for proceedings consistent with this
memorandum.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/18
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In the Interest of: A.S., a Minor
Combined Opinion