J-S50045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF H.A.H., R.O.C., : IN THE SUPERIOR COURT OF
JR. AND O.Z.C. : PENNSYLVANIA
:
:
APPEAL OF: J.M.H., NATURAL :
MOTHER :
:
:
: No. 801 WDA 2018
Appeal from the Decree, April 23, 2018,
in the Court of Common Pleas of Cambria County,
Orphans' Court at No(s): 2017-831 IVT,
2017-832 IVT, 2017-833 IVT.
BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 15, 2018
Mother, J.M.H., appeals from the decrees entered April 23, 2018, which
granted the petition filed by Cambria County Children and Youth Service (CYS)
terminating her parental rights involuntarily to her three minor children: 8-
year-old H.A.H., 3-year-old O.Z.C., and 17-month-old R.O.C., Jr. (collectively
Children). After review, we vacate the order without prejudice and remand
for further proceedings consistent with this memorandum.
CYS became involved with this family in March 2015 following
allegations of medical neglect. Then 7-month-old O.Z.C. had only been seen
by a pediatrician once since her birth and had no immunizations; Mother had
also missed five pediatrician appointments for H.A.H. See N.T., 1/29/18, at
37. CYS initially arranged services to stabilize the family, but then filed a
dependency petition in January 2016. The basis for the petition was Mother’s
J-S50045-18
considerable lack of cooperation with service providers as well as Mother’s
positive tests for opiates, cocaine, and marijuana. Id., at 39-40. There were
also allegations of homelessness and Mother’s outstanding arrest warrant.
Id., at 4.
Over the next two years, Mother was ordered to comply with a series of
goals that would facilitate reunification. As the dependency cases proceeded,
Mother’s compliance appeared to be minimal. For example, Mother attended
less than a quarter of her visits scheduled with Children.
In January 2018, the orphans’ court held a hearing on CYS’ termination
petition. Mother appeared with counsel at the hearing. The court appointed
Christopher G. Gvozdich, Esquire, to represent Children. At the conclusion of
the hearing, the court directed the parties to submit memoranda arguing their
respective positions. Thereafter, on April 23, 2018, the court entered
terminating decrees. Mother timely filed notices of appeal along with concise
statements of errors complained of on appeal.
Before addressing the merits of Mother’s appeal, we must consider sua
sponte whether Children’s counsel provided adequate representation of their
legal interests at the termination proceeding.
Appointment of counsel representing the children is
mandatory, and failure to do so is legal error. In re
Adoption of G.K.T., 75 A.3d 521, 526 (Pa Super. 2013)
(citing In re E.F.H., 751 A.2d 1186, 1189-90 (Pa. Super.
2000)). See also In re Adoption of N.A.G.., [471 A.2d
871 (Pa. Super. 1984)] (holding 23 Pa.C.S.A. § 2313(a)
creates a statutory right for a child to have counsel
appointed who actively advances his or her needs and
welfare and owes loyalty exclusively to him or her). This
-2-
J-S50045-18
Court must raise the failure to appoint statutorily-required
counsel for children sua sponte, as children are unable to
raise the issue on their own behalf due to their minority. In
re K.J.H., [180 A.3d 411 (Pa. Super. 2018)].
In re Adoption of M.D.Q., ---A.3d ---, 2018 PA Super 199, at *1-2. (Pa.
Super. July 6, 2018) (citing In re Adoption of T.M.L.M., 184 A.3d 585, 588
(Pa. Super. 2018)). The Adoption Act provides that children have the right to
representation by counsel in all contested involuntary termination
proceedings. The Act provides as follows, in relevant part:
(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.
23 Pa.C.S. § 2313(a).
The term “counsel” in 23 Pa.C.S.A. § 2313(a) refers to an attorney
representing the child's legal interests who is directed by the child. In re
Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172, 180 (2017). As our Supreme
Court has emphasized, a child's legal interests are distinct from his or her best
interests. Id. at 174; see also In re T.S., --- A.3d ---, 2018 WL 4001825
(Pa. August 22, 2018). A child's legal interests are synonymous with his or
her preferred outcome, while a child's best interests must be determined by
the trial court. Id.
-3-
J-S50045-18
This Court has further articulated that a remand is necessary when it is
unclear whether the children’s counsel advocated for their best interests or
their legal interests. See M.D.Q., supra, 2018 PA Super 199, at *3. In
M.D.Q., the children’s counsel was a separately appointed attorney, as
opposed to a guardian ad litem who was tasked with representing the
children’s non-conflicting legal and best interests. Id., at FN 1. There, counsel
clearly advocated for termination of Mother’s rights, yet we remanded to allow
the children’s counsel to conduct an additional interview of the children to
discern their preferred outcomes directly. In that case, we could not tell from
the record whether the source of the counsel’s advocacy was the children’s
preferred outcome or whether the advocacy was driven by the counsel’s own
belief as to what was in the children’s best interests. Id.
This case presents a factual predicate so similar to M.D.Q. that we are
constrained to follow suit.
In M.D.Q., the orphans’ court directed the parties to submit post-
testimony briefs arguing their respective positions regarding termination of
the mother’s parental rights. Counsel stated that she spoke with the children
to discuss their positions on termination. Id. The court determined, based on
counsel’s brief, that the children saw their stepmother as fulfilling the parental
role; termination of the mother’s rights would have no great impact on the
children; and the mother’s spotty involvement would detrimentally impact the
children’s emotional needs. Id. On appeal, the children’s counsel submitted
a brief with our Court, but the appellate brief did not provide any more
-4-
J-S50045-18
information about the children’s preferred outcomes. Id. We held that
counsel’s representation was insufficient. In doing so, we explained that while
counsel may have interviewed the children and spoken to them about their
mother, it did not appear that counsel asked, or attempted to ask, what the
preferred outcomes were. Id. We supposed that it may be that the children
were not able or willing to state a preferred outcome, but there is no indication
of that in the lower court’s description either. Finally, we were unable to glean
the children’s preference anywhere else in the record. Id.
When comparing M.D.Q. with instant case, we observe the following
similarities:
Attorney Gvozdich was appointed as an attorney for Children. He
participated in this case by cross-examining witnesses; he made no mention
of Children’s preferred outcomes on the record, and presented no argument
or statement on their behalf. At the conclusion of the hearing, the court
directed the parties to submit memoranda arguing their position. Attorney
Gvozdich’s memorandum listed himself as “legal counsel,” which has become
something of a term-of-art as courts have implemented our Supreme Court’s
holding in L.B.M. See CYS’ Brief, at Appendix 2. Attorney Gvozdich’s post-
testimony memorandum thoroughly argued for termination. But, as far as
Children’s preferred outcome was concerned, Attorney Gvozdich’s explanation
was ambiguous:
Only [8-year-old] H.A.H. is of a suitable age that legal
counsel [Attorney Gvozdich] was able to converse with him
in a manner designed to elicit answers that would be helpful
-5-
J-S50045-18
to representation of my clients’ in the Court proceedings.
My conversation with H.A.H. painted an overall picture of a
child who is satisfied with whom and where he resides.
Id.
While Attorney Gvozdich held himself out as legal counsel and
interviewed H.A.H., we still have no basis to conclude that H.A.H. was provided
with counsel who represented his legal interests and took direction from
H.A.H. to the extent possible. See M.D.Q., at *4. At the time of the hearing,
H.A.H. was 8 years old. He had spent the first six years of his life with Mother.
Mother testified that H.A.H. loves her, is bonded to her, and would not believe
any negative thing said about her. N.T., at 140-141. Although Attorney
Gvozdich explained that H.A.H. is “satisfied” with his current living situation,
there was still no indication that H.A.H. would prefer this current situation over
termination, which necessarily includes a very real possibility that he would
never see Mother again, or at least not until he reaches the age of majority.
Like M.D.Q., what little indication exists in the record addressing H.A.H.’s legal
interests suggests that there may have even been a conflict between counsel’s
stated position and H.A.H.’s preferred outcome.
We agree with Attorney Gvozdich’s assessment that the younger siblings
(ages 3 and 17 months) were too young to articulate a preferred outcome.
Thus, the younger siblings’ cases do not pose the problem that H.A.H.’s case
does. In their cases, we need not resolve the ambiguity of whether Attorney
Gvozdich represented their best interests or legal interests. Where an
attorney advocates for the children’s best interests in a contested termination
-6-
J-S50045-18
hearing, § 2313(a) does not require the appointment of another lawyer to
advocate for the children’s legal interests when their preferred outcome is
unknowable on account of the children’s young age. See T.S., 2018 WL
4001825, at *7. In other words, even if Attorney Gvozdich only represented
the younger siblings’ best interests, his representation could not have run
afoul of § 2313(a) because they were too young to articulate a preferred
outcome. Nevertheless, all three Children’s cases must be remanded, because
all three may be impacted by H.A.H.’s preferred outcome.
In the event that H.A.H.’s preferred outcome does not align with
termination, the orphans’ court would be required to conduct a new hearing.
A new hearing would necessitate a new 23 Pa.C.S.A. § 2511(b) analysis, which
could affect not only H.A.H.’s case, but also to the cases of the younger
siblings. This possibility may be remote, but our remand must account for it
nevertheless.
We acknowledge that H.A.H.’s preferred outcome, even if inconsistent
with termination, might still not be enough to change the end result. Likewise,
we are aware that Attorney Gvozdich and the orphans’ court did not have the
benefit of either of our decisions in T.M.L.M. (184 A.3d 585) or in M.D.Q.
(2018 PA Super 199), nor the Supreme Court’s holding in T.S. (2018 WL
4001825) when this termination hearing occurred. But it is paramount that
the law safeguards the rights of children, who cannot advocate for these rights
themselves. Eventually, the “legal counsel” growing pains will ease as local
-7-
J-S50045-18
jurisdictions enforce § 2313(a) as it was intended. Until then, we are
constrained to remand ambiguous cases like this.
Because of the deficiency of information here, we are constrained to
vacate the decrees terminating Mother’s parental rights involuntarily, and
remand for counsel to conduct an additional interview with H.A.H. to discern
and articulate his legal interests. Once Attorney Gvozdich has done so, he
must notify the orphans’ court. If H.A.H. express preferred outcome is
consistent with the result of the prior proceeding, or if H.A.H. is unable or
unwilling to articulate a clear preferred outcome, the court may reenter its
termination decrees. If H.A.H.’s preferred outcome is inconsistent with the
result of the prior proceeding, the court must conduct a new termination
hearing, with counsel actively advocating for H.A.H.’s legal interests. See
M.D.Q., --- A.3d ---, 2018 PA Super 199, at *5.
Order vacated without prejudice to permit the orphans’ court to reenter
the original order if a new hearing is not necessary. Case remanded for further
proceedings consistent with this Memorandum. Jurisdiction relinquished.
Judge Bowes joins in the Memorandum.
Judge Ott concurs in the result.
-8-
J-S50045-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2018
-9-