J-S37001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.R.F.H.-H. : IN THE SUPERIOR COURT OF
A/K/A A.H., A MINOR : PENNSYLVANIA
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APPEAL OF: D.H., FATHER :
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:
:
: No. 148 EDA 2018
Appeal from the Order Entered December 15, 2017
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): CP-51-AP-0001097-2017,
CP-51-DP-0002642-2016, FID: 51-FN-002518-2016
BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 01, 2018
Appellant, D.H. (Father) appeals from the order entered on December
15, 2017, involuntarily terminating his parental rights to A.R.F.-H., a.k.a.,
A.H. (a female, born in January, 2014) (the Child). Upon review of the record
and recent, applicable case law, we are constrained to vacate the order
without prejudice and remand this case for further proceedings consistent with
this memorandum.
The trial court summarized the facts and procedural history of this case
as follows:
On November 16, 2016, the Department of Human Services (DHS)
received a General Protective Services (GPS) report which alleged
that [the Child] and her parents were squatting in [a] home
located [on] North 19th Street; that the home had a strong odor
of marijuana; and that Father sold drugs in [the Child’s] presence.
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* Former Justice specially assigned to the Superior Court.
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The report alleged Mother[1] and Father left [the Child] in the care
of her Maternal Grandfather and never returned. Father
telephoned Maternal Grandfather twice and stated during the first
call he was in Miami and during the second call stated he was in
New York. The report alleged the police were called as Father
tried to remove [the Child] from Maternal Grandfather’s care. It
was further alleged in the presence of Philadelphia [p]olice, [that]
Father threated to damage Maternal Grandfather’s home [and]
vehicle and assault Maternal Grandfather. The report alleged
Mother and Father had domestic violence issues.
On November 17, 2016, DHS attempted a visit at the home of
Maternal Grandfather; however, there was no answer.
On November 18, 2016, Maternal Grandfather telephoned DHS
and stated [the Child] had been in his care since August 2016.
Maternal Grandfather stated he planned to obtain a Protection
from Abuse (PFA) order against Father because Father came to
Maternal Grandfather’s home on November 12, 2016 and tried to
remove [the Child] from his care. Maternal Grandfather stated
that Father threatened to harm him and that there was a physical
altercation. The Philadelphia Police Department was contacted.
DHS received allegations that Father had no contact with [the
Child] and lacked stable and appropriate housing.
On November 18, 2016, DHS attempted to contact Father;
however[,] the [tele]phone was disconnected.
On November 28, 2016, DHS met with Maternal Grandfather who
stated that on November 23, 2016, Father had attempted to
remove [the Child] from daycare, but [the Child] was not in school
due to illness. DHS determined that Maternal Grandfather’s home
was appropriate.
On November 28, 2016, DHS obtained an Order of Protective
Custody (OPC), and [the Child] remained in the care of Maternal
Grandfather.
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1 Mother, R.H., was facing termination of her parental rights and was present
at the hearing to terminate Father’s parental rights. However, Mother’s
counsel was not present and her case was continued. Mother is not a party
to the instant appeal.
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On November 29, 2016, DHS spoke with Father who admitted
marijuana use. Father stated he left [the Child] in Maternal
Grandfather’s care in August 2016 due to out of state
employment. Father asked Maternal Grandfather to care for [the
Child] for a couple of months. [On November 29, 2016, the trial
court appointed Daniel Silver, Esquire as the guardian ad litem
[GAL] for the Child.]
At the [s]helter [c]are [m]eeting held on November 30, 2016, the
[c]ourt lifted the OPC, ordered the temporary commitment to
stand, referred Father to the Clinical Evaluation Unit (CEU) for a
drug and alcohol screen[] with dual diagnosis assessments and
issued a [s]tay-[a]way [o]rder against Father as to Maternal
Grandfather and his home.
On November 30 2016, Father tested positive for marijuana.
At the [a]djudicatory [h]earing held on December 7, 2016, the
[c]ourt discharged the temporary commitment to DHS;
adjudicated [the Child] dependent based on present inability to
provide proper parental care and control; and committed [the
Child] to the custody of DHS. Father was referred to the CEU for
drug screens, dual-diagnosis assessments, monitoring and three
random drug screens and ordered to follow all recommendations.
Father was referred to domestic violence counseling, housing
assistance, and parenting education classes and to the Achieving
Reunification Center (ARC) for appropriate services. The [s]tay-
[a]way [o]rder as to Father was ordered to stand. The [c]ourt
ordered Father not to have any contact with [the Child’s] daycare.
Father was to be awarded weekly supervised [] visits with [the
Child] at the agency and was ordered to confirm visits 24 hours in
advance.
On December 19, 2016, Community Umbrella Agency (CUA) –
Wordsworth held an initial Single Case Plan (SCP) meeting. [The
Child’s] goal was identified as reunification. The parental
objectives for Father included the following: 1) improve
relationship with [the Child]; 2) attend weekly supervised line-of-
sight visits with [the Child]; 3) correct or stabilize health and sign
all necessary consent forms; 4) comply with all court orders,
service plans, and recommendations; 5) comply with [the] [s]tay-
[a]way [o]rder as to Maternal Grandfather and [the Child’s]
daycare; 6) attend ARC for parenting education and housing
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services; 7) contact Menergy for domestic violence counseling; 8)
achieve and maintain recovery for drug and alcohol issues; 9)
attend CEU for an assessment and follow treatment
recommendations; 10) complete three random drug screens; and
11) [complete] all necessary consent forms for [the Child].
On January 18, 2017, Father tested positive for marijuana.
Wordsworth completed a [v]isitation [a]ssessment for Father’s
January 21, 2017 visit with [the Child]. The assessment noted
that Father failed to bring any snacks or gifts for [the Child] and
that this was the first visit since October, 2016.
On March 7, 2017, the CEU completed a progress report for
Father. The report stated that Father failed to go to the CEU
following the December 7, 2016 hearing as court-ordered. Father
failed to attend his scheduled assessment on December 14, 2016
[] and that Father failed to contact his case manager to reschedule
an assessment.
At the [p]ermanency [h]earing held on March 7, 2017, the [c]ourt
found that [the Child’s] placement continued to be necessary and
appropriate, and ordered [the Child’s] commitment to DHS to
stand. Father was referred to the CEU for a drug screen and three
random drug screens. Additionally, Father was referred for a dual-
diagnosis assessment. Supervised line-of-sight and hearing visits
were ordered to continue. Father was ordered to confirm his
attendance 24 hours before each visit.
The matter was [] listed on a regular basis before judges of the
Philadelphia Court of Common Pleas, Family Court Division-
Juvenile Branch pursuant to [S]ection 6351 of the Juvenile Act, 42
Pa.C.S.A. § 6351, and evaluated for the purpose of reviewing the
permanency plan of the [C]hild. In subsequent hearings, the
[d]ependency [r]eview [o]rders reflect the [c]ourt’s review and
disposition as a result of evidence presented, primarily with the
goal of finalizing the permanency plan.
On December 15, 2017, during the [t]ermination of [p]arental
[r]ights [h]earing for Father, the [c]ourt found by clear and
convincing evidence that Father’s parental rights, should be
terminated pursuant to the Juvenile Act. Furthermore, the [c]ourt
held it was in the best interest of the [C]hild that the goal be
changed to [a]doption.
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Trial Court Opinion, 3/23/2018, at 1-3. This timely appeal resulted.2
On appeal, Father presents the following issues for our review:
1. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Father] under 23 Pa.C.S.A. § 2511(a)(1)?
2. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Father] under 23 Pa.C.S.A. § 2511(a)(2)?
3. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Father] under 23 Pa.C.S.A. § 2511(a)(5)?
4. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Father] under 23 Pa.C.S.A. § 2511(a)(8)?
5. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Father] under 23 Pa.C.S.A. § 2511(b)?
Father’s Brief at 5.
Before we may consider the merits of the issues raised on appeal, we
must consider whether Child was adequately represented by legal counsel at
the termination hearing.3 Recently, and applicable herein, our Supreme Court
issued an opinion to clarify a child’s statutory right to the appointment of legal
counsel. See In re T.S., 2018 WL 4001825 (Pa. 2018). That decision further
examined the Supreme Court’s prior decision in In re Adoption of L.B.M.,
161 A.3d 172 (Pa. 2017) and explained that children have a clear statutory
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2 On January 10, 2016, 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 filed an opinion pursuant Pa.R.A.P. 1925(a) on
March 23, 2018.
3 This Court must raise the failure to appoint statutorily-required legal counsel
for children sua sponte. In re K.J.H., 180 A.3d 411 (Pa. Super. 2018).
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right to mandatory appointment of counsel to represent their legal interests4
in contested termination of parental rights proceedings.
Our Supreme Court granted allowance of appeal in In re T.S. to
determine whether separate attorneys were required to represent a child’s
best interests apart from his or her legal interests. The Supreme Court
clarified its L.B.M. decision, recognizing that, “where a child’s legal and best
interests do not diverge in a termination proceeding, an attorney-[guardian
ad litem] representing the child's best interests can also fulfill the role of the
attorney appointed [] to represent the child's legal interests.” In re T.S.,
2018 WL 4001825, at *6. The T.S. Court also noted that the majority view in
L.B.M. “indicated that, where a child is too young to express a preference, it
would be appropriate for the [guardian ad litem] to represent the child's best
and legal interests simultaneously.” Id. The T.S. Court ultimately concluded
that when a child is too young5 or non-verbal, the child’s wishes cannot be
ascertained, and therefore there is no duty to advise the court. Id. (“As a
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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. Whereas, a child’s
best interests are to be determined by the trial court. Id.
5 In T.S., the Supreme Court and “[t]he parties agree[d] that, due to the
children's very young age (two and three years old), they [could not] have
formed a subjective, articulable preference to be advanced by counsel during
the termination proceedings[.]” Id. at *7. Conversely, however, the T.S.
Court noted that Pennsylvania's Rules of Professional Conduct refer to
“children as young as five or six years of age ... having opinions which are
entitled to weight in legal proceedings concerning their custody.” Id. at *7
n.17, citing Pa.R.P.C. 1.14, Explanatory Comment 1. In this case, there is no
dispute that at the time of the termination proceeding, the Child was over four
years old.
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matter of sound logic, there can be no conflict between an attorney's duty to
advance a subjective preference on the child's part which is incapable of
ascertainment, and an attorney's concurrent obligation to advocate for the
child's best interests as she understands them to be.”). Ultimately, the T.S.
Court concluded:
We [] reaffirm certain principles agreed upon by a majority of
Justices in L.B.M., namely, that during contested termination-of-
parental-rights proceedings, where there is no conflict between a
child's legal and best interests, an attorney-guardian ad
litem representing the child's best interests can also represent the
child's legal interests. […M]oreover, if the preferred outcome of a
child is incapable of ascertainment because the child is very young
and pre-verbal, there can be no conflict between the child's legal
interests and his or her best interests[.]
Id. at *10.
Finally, in In re Adoption of T.M.L.M., 184 A.3d 585 (Pa. Super.
2018), this Court examined the requirements necessary for counsel to provide
adequate representation of a child’s legal interests as follows:
At the time of the hearings, [T.M.L.M.] was just shy of six years
old. While [T.M.L.M.] may not have been old enough to participate
actively in [court appointed counsel’s] representation of him, it is
not unlikely that [T.M.L.M.] has feelings one way or another about
his mother and his permanency. 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. It may be
that [T.M.L.M.’s] preferred outcome in this case is synonymous
with his best interests. It may be that [T.M.L.M.] wants no contact
with Mother. [T.M.L.M.] may be unable to articulate a clear
position or have mixed feelings about the matter. Furthermore,
termination of Mother's rights may still be appropriate even if
[T.M.L.M.] prefers a different outcome.
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In re Adoption of T.M.L.M., 184 A.3d 585, 590 (Pa. Super. 2018) (emphasis
added) (internal citation omitted).
Here, our review of the certified record reveals the following. On
November 29, 2016, the trial court entered an “Order Appointing Counsel as
Child Advocate” naming Daniel Silver, Esquire “to represent the interests of
the Child in connection with proceedings related to dependency, termination
of parental rights, and adoption.” Order Appointing Counsel as Child
Advocate, 11/29/2016, at 1. At the termination proceeding, Attorney Silver
entered his name on the record, stating that he was representing the Child as
guardian ad litem. N.T., 15/15/2017, at 3-4. James King, Esquire was also
present at the termination hearing. Id. at 3. Attorney King stated that he
was representing the Child as “Child Advocate.” Id. Upon review of the
record, however, there is no order or other indication of when, if, or in what
capacity the trial court appointed Attorney King. Likewise, there is no written
entry of appearance for Attorney King in the certified record.
During the termination of parental rights proceeding, counsel for DHS
called the social worker involved with the Child as the sole witness. The social
worker ultimately testified that she believed that it was in the Child’s best
interest to terminate Father’s parental rights. Id. at 27-28. Attorney Silver
asked this witness questions pertaining to Father’s visitation, compliance with
drug and alcohol treatment, and progress with domestic violence and
parenting classes. Id. at 30-32. Attorney King asked a sole question
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pertaining to the pre-adoptive home. Id. at 32. Thereafter, neither Attorney
Silver nor Attorney King had any additional evidence or witnesses. Id. at 34.
At the end of the proceedings, counsel for DHS argued that there was
clear and convincing evidence that Father had not remedied the conditions
that led to the Child coming into the agency’s care and that termination of
Father’s rights was in the Child’s best interest. Id. at 43. Both Attorneys
Silver and King agreed with the recommendation that the termination of
Father’s parental rights would be in the Child’s best interest and had nothing
further to add. Id. at 44. Neither attorney, however, advanced the Child’s
legal interests, provided evidence of the Child’s preferred outcome in the
termination proceedings, or indicated the Child’s preference was unable to be
ascertained because of age or level of development.
Based upon the record before us, there is no indication that counsel
interviewed the Child to determine whether she could verbalize a preferred
outcome as required. As such, counsel has not ascertained whether there was
a conflict between the Child’s best and legal interests. Therefore, the record
does not substantiate that the Child’s statutory right to legal counsel was
observed. Hence, we are constrained to vacate the order terminating Father’s
parental rights without prejudice. On remand, after reviewing the prior
proceedings and appropriately consulting with the Child, Attorney King shall
notify the trial court whether the result of the prior proceedings was consistent
with the Child’s legal interests or whether counsel believes a new hearing is
necessary to advocate a separate preferred outcome or placement for the
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Child. See T.M.L.M., 184 A.3d at 591. The trial court shall conduct a new
hearing only if it serves the substantive purpose of providing the Child with an
opportunity to advance her legal interests through new counsel. Id. If,
however, a new hearing is deemed unwarranted, the trial court may re-enter
the original order terminating Father’s parental rights.
Order vacated without prejudice. Case remanded for additional
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judge McLaughlin joins the memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/18
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In the Interest of: A.R.F.H-H. a/k/a A.H., a Minor
Combined Opinion