J-S32024-18 & J-S32025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: J.M.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: O.L.T., MOTHER :
:
:
:
: No. 202 MDA 2018
Appeal from the Decree January 12, 2018
In the Court of Common Pleas of York County Orphans' Court at No(s):
2017-0157
IN RE: ADOPTION OF: J.M.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: O.L.T., MOTHER :
:
:
:
: No. 203 MDA 2018
Appeal from the Order Entered January 12, 2018
In the Court of Common Pleas of York County Orphans' Court at No(s):
2017-0156
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 11, 2018
O.L.T. (Mother) appeals from the decree and order granting the petitions
filed by the York County Office of Children, Youth and Families (CYF) seeking
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* Retired Senior Judge assigned to the Superior Court.
J-S32024-18 & J-S32025-18
to involuntarily terminate her parental rights to her minor, male twin children,
Ji.M.T. and Jr.M.T.1 (born in June of 2012) (collectively, Children).2 Following
our review, we are constrained to vacate the order and remand this case for
further proceedings.
The procedural history of this case is as follows. On April 28, 2016, CYF
received allegations that Mother left Children without supervision. The York
City Police Department responded to Mother’s residence and found Children
alone. Mother returned to the residence twenty minutes later and smelled of
alcohol. Mother was incarcerated on April 28, 2016, for endangering
Children’s welfare. Mother’s cousin, R.M. (Foster Mother), came forward as a
resource for Children and was approved as an emergency caregiver.
On April 29, 2016, the Agency filed applications for emergency
protective custody. Attorney Thomas L. Kearney, IV, was the court-appointed
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1 As the trial court explained, since Children have the same initials, they were
designated as Ji.M.T. and Jr.M.T. in the respective petitions. Trial Ct. Op.,
2/16/18, at 1. We have consolidated Mother’s appeals from the decrees
terminating her parental rights to Children for the purposes of disposition.
The trial court also granted the goal changes to adoption. Mother’s appeal
from those orders are listed at 198 & 199 MDA 2018 and are addressed in a
separate memorandum.
2At all times relevant to this appeal, L.A.T. (Father) was incarcerated at the
Somerset State Correctional Institution in relation to his guilty pleas to
possession of a firearm prohibited, a second-degree felony, and burglary of
an overnight accommodation with a person present, a first-degree felony.
Father did not appeal the trial court’s decrees.
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guardian ad litem (GAL) for Children. In orders for emergency protective
custody dated April 29, 2016, the trial court concluded that there was
sufficient evidence to prove that continuation or return of the minor children
to the Mother’s home was not in the best interest of Children. The trial court
temporarily awarded legal and physical custody of Children to the Agency, and
Children were placed with Foster Mother.
On May 4, 2016, the Agency filed dependency petitions. The following
day, Mother was released from prison, and began having unsupervised contact
with Children. Justice Works opened for services with Mother on May 17,
2016. On May 31, 2016, a first family service plan (FSP) was prepared for
Mother, which permitted unsupervised visitation at Mother’s home.
On June 20, 2016, a CYF caseworker made a field visit to Mother’s
residence and found Children outside and unsupervised. The caseworker
repeatedly knocked on Mother’s door. Mother did not answer the door for
approximately fifteen minutes. After that incident, Mother’s visits with
Children were changed to visits supervised by Foster Mother.
On July 19, 2016, the trial court adjudicated Children dependent under
42 Pa.C.S. § 6302(1). The court maintained legal and physical custody with
the Agency and ordered Children to remain in kinship care. The permanency
goal was return to a parent or guardian, with a concurrent goal of adoption.
On September 20, 2016, Justice Works closed services as unsuccessful.
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On August 29, 2017, CYF filed petitions to involuntarily terminate the
parental rights of Mother and change Children’s permanency goal to adoption
under 23 Pa.C.S. § 2511(a)(1), (8), and (b). On September 8, 2017, the trial
court entered orders appointing the GAL, Attorney Kearney, to serve as
Children’s legal counsel.
On December 15, 28, and 29, 2017, the trial court conducted an
evidentiary hearing on the petitions. Mother and her counsel were present.
Children were present and were represented by Attorney Kearney as their GAL
and legal counsel. On December 29, 2017, the trial court found that CYF
established grounds for termination of Mother’s parental rights under 23
Pa.C.S. § 2511(a)(1), (8), and (b). The decree and order terminating Mother’s
parental rights were entered on January 12, 2018.
On January 29, 2018, Mother timely filed notices of appeal, along with
concise statements of errors complained of on appeal, with the trial court. The
trial court filed an opinion relying on its oral ruling at the hearing.
Before addressing Mother’s issues on appeal, we must address whether
the representation of the Children provided by Attorney Kearney satisfies the
requirement of 23 Pa.C.S. § 2313(a). See In re K.J.H., 180 A.3d 411, 413
(Pa. Super. 2018) (holding that this Court must raise sua sponte the issue of
child’s right to counsel).
Section 2313(a) provides:
The court shall appoint counsel to represent the child in an
involuntary termination proceeding when the proceeding is being
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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 has highlighted the distinction between “counsel”
representing a child’s legal interests and a GAL representing a child’s best
interests. See In re Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017)
(plurality). The L.B.M. Court noted that a child’s legal interests “are
synonymous with the child’s preferred outcome.” Id. at 174. A child’s “best
interests” denotes what is believed to be “best for the child’s care, protection,
safety, and wholesome physical and mental development regardless of
whether the child agrees.” Id. at 174 & n.2. This Court has interpreted the
lead and concurring opinions in L.B.M. as permitting a GAL to act as a child’s
legal counsel so long as there is no conflict between a child’s legal interests
and best interests. See In re D.L.B., 166 A.3d 322, 329 (Pa. Super. 2017).
More recently, however, this Court has sought to clarify the role of a
child’s legal counsel. In In re Adoption of T.M.L.M., 184 A.3d 585 (Pa.
Super. 2018), an attorney served in dual roles as GAL and legal counsel for a
child, who was at the time under six years old. T.M.L.M., 184 A.3d at 587-
90. However, the attorney did not attempt to interview the child, set forth
the child’s preferred outcome, or advocate for the child’s legal interests during
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the hearings. Id. at 588-90. Instead, the attorney focused solely on the
child’s best interests. Id.
The T.M.L.M. Court concluded that the child had been deprived of his
statutory right to counsel, reasoning that
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. It may be that [the
c]hild’s preferred outcome in this case is synonymous with his best
interests. It may be that [the c]hild wants no contact with
[m]other. [The c]hild may be unable to articulate a clear position
or have mixed feelings about the matter. Furthermore,
termination of [m]other’s rights may still be appropriate even if
[the c]hild prefers a different outcome. However, . . . it is clear
that where a court appoints an attorney ostensibly as counsel, but
the attorney never attempts to ascertain the client’s position
directly and advocates solely for the child’s best interests, the
child has been deprived impermissibly of his statutory right to
counsel serving his legal interests.
Id. at 590. Accordingly, the T.M.L.M. Court vacated the order terminating
the mother’s parental rights and remanded for appointment of legal counsel.
Id. at 591.
In In re Adoption of D.M.C., ___ A.3d ___, ___, 2018 PA Super 200,
2018 WL 3341686 (Pa. Super. filed July 9, 2018), the trial court appointed
separate counsel for children,3 who were approximately thirteen and four-and-
one-half years old. D.M.C. 2018 WL 3341686 at *2. However, the record did
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3 The trial court in D.M.C. previously appointed GALs for children in the
dependency matters before the juvenile court. D.M.C., 2018 WL 3341686 at
*2.
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not indicate whether counsel was representing children’s best interests or their
legal interests.
Specifically, the trial court’s appointment of counsel in D.M.C. did not
clarify the role to which counsel was appointed, and counsel’s own filings did
not assert that he was acting as legal counsel. Id. at *2-3. Moreover, counsel
asserted that he only spoke with the thirteen-year-old child on the phone on
the night before the termination hearing. Id. at *3. Counsel ascertained that
the older child loved his mother, and that there was a bond with mother.
Counsel, however, believed that children were “ready for permanency.” Id.
Counsel concluded:
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 [Children and Youth
Services] 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 [children], particularly, [the child to whom
counsel spoke]. 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.
Id. (citation and emphasis omitted). Counsel, in his brief filed in mother’s
appeal, further asserted that the thirteen-year-old child wanted to be adopted
but also wanted continued contact with mother. Id. at *4. However, there
was no indication that counsel attempted to ascertain, set forth, or advance
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the four-and-one-half year old child’s preferred outcome prior to the
termination hearing or mother’s appeal.4 Id.
The D.M.C. Court concluded: “Nothing in the record indicates
definitively that the orphans’ court appointed [counsel] as such legal counsel.
Moreover, nothing in the record indicates definitively that [counsel] advocated
for [the children’s] legal interests and followed the direction of [the children].”
Id. *5. Because the record was unclear on “whether [the children] received
the benefit of their statutorily-required right” to legal counsel, this Court
vacated the order and remanded for the appointment of new counsel for the
children. Id. at *5-6.
Instantly, the trial court appointed the GAL, Attorney Kearney, to serve
as legal counsel. Following the close of testimony on December 15, 2017, the
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4 The D.M.C. Court suggested that although a caseworker testified the four-
and-one-half year old child may be too young to express a preferred outcome,
some indications as to that child’s preferences were:
(1) [the child] enjoys visits with [m]other; (2) [the child] enjoys
spending time with his foster family; (3) [the child] used to throw
temper tantrums when visits with [m]other ended, but that
behavior stopped as visits continued, (4) [the child] “knows he
can’t go home” with [m]other; (5) during supervised visits, [the
child] runs to give [m]other a hug; (6) [the child] “appeared
happy to see” [m]other at supervised visits; [and] (7) [the child]
sometimes plays by himself during [m]other’s supervised visits,
but also enjoys playing with [m]other.
D.M.C., 2018 WL 3341686 at *4 n.9 (citations omitted).
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trial court, with all counsel present, examined Children. Children had difficulty
focusing, could not clearly answer whether they were capable of telling the
truth or a lie, and at times provided nonsensical answers.5 After the Children
were excused, Attorney Kearney and the court had the following exchange:
ATTORNEY KEARNEY: Just for the record, I spoke to both of the
boys individually. I shouldn’t say individually, they were actually
both in the room when I was talking to them. The caseworker,
Brandon [Ambrose], was present when I had this conversation
with them. I attempted to try to get their sense of where they
want to be, and basically the answers I got were very jumbled. If
I really had to boil it down, they basically said they would rather
be at both places, both with [Mother] and with [Foster Mother]. I
didn’t get a definitive this is definitively were I want to be versus
here. It was that they both wanted to be basically at both places
is the sense I got. Again, that is my translation of a very childish
conversation, which I did not feel was really comprehended by
[Children].
THE COURT: Yeah. Clearly they are not at the point where we are
getting any useful information. They really didn’t get past the
truth or a lie question, so I’m not sure that we can -- you know,
it is good to get a sense of [C]hildren, but I can’t really take
anything as testimony at this point.
N.T., 12/15/17, at 125-26.
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5 For example, Jr.M.T. answered that that he would not get a timeout if he
told a lie at home, but then stated he would get “[a] corner.” N.T., 12/15/17,
at 113. When the court asked whether it was true that Ji.M.T.’s black shirt
was red, Ji.M.T. incorrectly answered, “[t]ruth,” but then later stated his shirt
was black and indicated “[i]t is corner time.” Id. at 113-14. When asked who
lived at the house Santa Claus would visit, Jr.M.T. indicated Foster Mother,
Mother, Mother’s adult daughter, and Father. Id. at 114. After noting that
he liked talking to his Father on the telephone, Ji.M.T. replied, “[n]owhere,”
when asked how much he talked to Father. Id. at 116. Ji.M.T. stated that he
loved Mother, Foster Mother, and Father, but also that there was no one that
he did not love. Id. at 124. Ji.M.T. repeatedly answered “cotton candy” to
various questions.
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During the hearing, however, it was undisputed that Children shared a
bond with and attachment to Mother. A family engagement specialist testified
that, in more recent visits, Children would run to the waiting room and hug
Mother. Id. at 61. The Children call Mother “Mommy” and Foster Mother
“Nam-maw.” Id. at 62. The Children remain attached to Mother, but also
have a bond with Foster Mother. Id. at 74. During one of the last visits with
Mother, Jr.M.T. stated “I want to go home with you, Mommy” as Mother was
preparing to leave. Id. at 103.
However, in his examination of the witnesses and his closing statement,
Attorney Kearney did not refer to the existing bonds between Mother and
Children or assert that Children might want continued contact with Mother.
Attorney Kearney made no reference to the family engagement specialist’s
testimony that on at least one occasion, one child expressed wanting to be
with Mother. Rather, Attorney Kearney focused solely on Mother’s conduct
and misconduct, as well as the best interests of Children. See N.T. 12/19/17,
at 207 (informing the trial court that he “definitely” believed that it was in
Children’s best interests that Mother’s rights be terminated and that they
would be at “great risk” if they were ever to go back to Mother).
Under these circumstances, we are constrained to conclude that there
is the possibility of a conflict in Attorney Kearney’s role as GAL and as legal
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counsel for Children.6 Attorney Kearney attempted to ascertain Children’s
preferences as to where they wanted to live in at least one conversation and
deduced that Children wanted to be with Foster Mother and Mother at the
same time.7 Nevertheless, there is no indication of Attorney Kearney’s efforts
to discern further Children’s possible preferences as to the outcome in light of
the possibility that the existing bonds with Mother could be permanently
severed.8 See D.M.C., 2018 WL 3341686 at *4 n.9, *5-6.
Thus, because the record is unclear as to whether Children received
their statutorily mandated right to legal counsel, we must remand this matter
to the trial court. See id. Upon remand, the court shall appoint new legal
counsel for Children to ascertain and, if necessary, represent their legal
interests. Legal counsel shall review the prior proceedings, have an
appropriate consultation with Children, and notify the trial court whether the
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6 Although the trial court definitively appointed Attorney Kearney as legal
counsel, the clarity in the formal appointment of the GAL as legal counsel is
not determinative. See T.M.L.M., 184 A.3d at 590.
7 We reiterate that appointment as legal counsel for young children poses
unique challenges, particularly where the children may have mixed feelings or
are unable to provide counsel with clear direction. See T.M.L.M., 184 A.3d
at 590. Nevertheless, this Court has tended to approach children’s statutory
right to counsel with a strong measure of caution as to the possibility of a
conflict of interest. See id. at 590 (noting that “it is not unlikely” that a child
nearing six years old “has feelings one way or another about his mother and
his permanency”).
8 We note that there was ample evidence of tension between Mother and
Foster Mother although the two are cousins. Foster Mother did not testify that
she would be agreeable to post-termination visitation by Mother.
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result of the prior proceedings was consistent with Children’s legal interests
or whether counsel believes a new hearing is necessary to provide counsel an
opportunity to advocate on Children’s behalf. The trial court shall conduct a
new hearing only if it provides Children with an opportunity to advance their
legal interests through new counsel.
Decree and order vacated. Case remanded with instructions.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2018
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In Re: Adoption of: J.M.T., a Minor
Combined Opinion