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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.L.M.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.P., MOTHER :
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: No. 741 EDA 2017
Appeal from the Decree Entered January 27, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000916-2015,
CP-51-DP-0000356-2014
IN THE INTEREST OF: S.B.K.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: S.P., MOTHER :
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:
:
: No. 743 EDA 2017
Appeal from the Decree Entered January 27, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000917-2015,
CP-51-DP-0000357-2014
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 10, 2018
In these consolidated appeals, S.P. (“Mother”) appeals from the January
27, 2017 decrees terminating her parental rights to her children, S.B.K.P.
(“Child 1”), a son born in April of 2011, and A.L.M.F. (“Child 2”), a daughter
born in September of 2009 (collectively “Children”), and from the orders dated
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the same date changing Children’s permanency goal to adoption. 1, 2 Upon
careful review, we vacate and remand.
On November 12, 2013, the Philadelphia Department of Human Services
(“DHS”) received a General Protective Services (“GPS”) report alleging that
Children did not have stable housing and Mother abused drugs. Petitioner’s
Exhibit 3. After an investigation, DHS determined that the report was valid.
Id. DHS enlisted the services of Community Umbrella Agency (“CUA”)
Asociacion Puertorriquenos en Marcha (“APM”) to provide in-home services to
Mother and Children, however APM could not locate Mother in order to
implement those services until January of 2014.
On January 31, 2014, APM located Mother at the Appletree Family
Shelter. Mother indicated that she had been residing with a friend until they
had a disagreement, after which Mother moved to the shelter. APM placed
Children with Maternal Aunt, who agreed to care for Children while Mother
secured stable housing. On February 7, 2014, DHS received a Child Protective
Services (“CPS”) report that Mother had abandoned Children with Maternal
Aunt and that Child 2 was in need of medical attention. DHS filed a petition
for order of protective custody, which the trial court granted, and Children
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1Child 1’s father, K.T. (“Father 1”), terminated his parental rights by consent.
The trial court also entered a separate decree involuntarily terminating the
parental rights of Child 1’s unknown father, Child 2’s father, W.F. (“Father 2”)
and Child 2’s unknown father. Father 1, Father 2 and all unknown fathers did
not file a brief in connection with this appeal, nor did they file a separate
appeal.
2 Mother has a third child born in June 2003.
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entered temporary DHS custody. Children remained in DHS custody pursuant
to a shelter care order entered on February 10, 2014, and the trial court
adjudicated Children dependent on March 21, 2014.
On December 24, 2015, DHS filed petitions to terminate involuntarily
Mother’s parental rights to Children and change Children’s permanency goal
to adoption. DHS amended the petitions on January 10, 2017. On January
27, 2017, the trial court held a hearing on the petitions. At the conclusion of
the hearing, the trial court orally delivered its decree involuntarily terminating
Mother’s parental rights and changing Children’s permanency goal to
adoption. The trial court entered its decree on that same date. On February
27, 2017, Mother timely filed a notice of appeal and concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(i) and (b).
Mother now raises the following issues for our review.
1. Did [DHS] sustain its burden that Mother’s rights should be
terminated when there was evidence that Mother had
completed and/or had been actively completing her
permanency goals?
2. Was there [] sufficient evidence presented to establish that it
was in the best interests of the children to terminate Mother’s
parental rights?
3. Did the trial court fully consider all the necessary factors
pursuant to the Pennsylvania Juvenile Act, specifically [42]
Pa[.]C[.]S[.]A[.] § 6351 (e) & (f), in its determination that the
goal of adoption is in the children’s best interest?
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Mother’s Brief at 4 (trial court answers omitted).3 Mother’s brief also contends
that our Supreme Court’s decision in In re Adoption of L.B.M., 161 A.3d 172
(Pa. 2017) requires that we vacate the trial court’s order and remand the case
for the appointment of separate counsel for Children and to conduct a “de
novo review of the appropriateness of the permanency goal and termination.”
Mother’s Brief at 21.
Before we reach the merits of Mother’s enumerated issues, we must
consider whether Children were adequately represented by legal counsel at
the termination hearing.4 In L.B.M., our Supreme Court held that trial courts
must appoint counsel to represent the legal interests of any child involved in
a contested termination proceeding pursuant to 23 Pa.C.S.A. § 2313(a).5 See
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3 Mother framed her enumerated issues somewhat differently in her concise
statement, but they were sufficiently preserved for our review.
4 This Court has held that the failure to appoint statutorily-required legal
counsel for children must be raised sua sponte. In re K.J.H., 180 A.3d 411
(Pa. Super. 2018). We need not do so in this case as Mother raised the issue
in her appellate brief.
5 Section 2313(a) provides as follows.
(a) Child.―The court shall appoint counsel to represent the
child in an involuntary termination proceeding when the
proceeding is being contested by one or both of the 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.
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In re Adoption of L.B.M., 161 A.3d at 183. The L.B.M. Court explained that
a child’s legal interests are distinct from his or her best interests, in that a
child’s legal interests are synonymous with the child’s preferred outcome,
while a child’s best interests must be determined by the court. Id. at 174.
While our Supreme Court held in L.B.M. that courts must appoint counsel, the
justices disagreed on whether the role of counsel may be fulfilled by a child’s
existing dependency guardian ad litem (“GAL”) where a child’s legal and best
interests do not diverge. See id. at 183. In addition, although the Court, in
L.B.M., held that the failure to appoint legal interest counsel in a contested
termination case constituted structural error that was not subject to harmless
error analysis, it was unclear whether such an omission was subject to waiver
principles.6
Recently, our Supreme Court issued an opinion that clarified many of
the issues raised in L.B.M. See In re T.S., 2018 WL 4001825 (Pa. 2018).
Specifically, the Court in T.S. held that the issue of whether the trial court
erred in failing to appoint separate legal interest counsel was non-waivable.
See id. at *5. In addition, a guardian ad litem who represents a child’s best
interests can also represent the legal interests of the child in a contested
termination proceeding so long as the child's legal and best interests do not
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23 Pa.C.S.A. § 2313(a).
6 The mother in L.B.M. raised the child’s right to legal interest counsel before
the trial court. Here, the issue was not raised before the trial court but was
first raised by Mother in her brief filed with this Court.
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diverge. See id. at *6 and 10 (“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”).
Finally, this Court has examined the requirements for adequate
representation of a child’s legal interests in the context of contested
termination proceedings. In In re Adoption of T.M.L.M., 184 A.3d 585 (Pa.
Super. 2018), we stated 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 [his m]other. [T.M.L.M.] may be unable to articulate a clear
position or have mixed feelings about the matter. Furthermore,
termination of [his m]other's rights may still be appropriate even
if [T.M.L.M.] prefers a different outcome.
In re Adoption of T.M.L.M., 184 A.3d 585, 590 (Pa. Super. 2018) (emphasis
added) (internal citation omitted).
Based upon the record before us, there is no indication that legal interest
counsel was ever appointed or that Children have been interviewed to
determine whether they possess the capacity to verbalize a preferred
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outcome.7 As such, no one has, as yet, ascertained whether there was a
conflict between Children’s best and legal interests. Therefore, the record
does not substantiate that Children’s statutory right to legal counsel was
observed. Hence, we are constrained to vacate the order terminating
Mother’s parental rights without prejudice. On remand, the trial court shall
appoint legal interest counsel for Children. Counsel shall review the entire
record from the prior proceedings and appropriately consult with Children for
the purpose of ascertaining Children’s subjective preferences. Thereafter,
legal interest counsel shall notify the trial court whether the result of the prior
proceedings was consistent with Children’s legal interests or whether counsel
believes a new hearing is necessary to advocate a separate preferred outcome
or placement for Children. 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 Children with an opportunity to advance legal interests that differ
from their best interests. Id. If, however, a new hearing is deemed
unwarranted, the trial court may re-enter the original decrees terminating
Mother’s parental rights.
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7 Children are presently seven and nine years of age and clearly not too young
to have formed a subjective, articulable preference that can be advanced by
counsel during the termination proceedings. In T.S., the Supreme 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.” In re T.S., 2018 WL
4001825 at *7 n.17, citing Pa.R.P.C. 1.14, Explanatory Comment 1.
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Decrees vacated without prejudice. Case remanded for additional
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/18
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In the Interest of: A.L.M.F., a Minor
Combined Opinion