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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTREST OF: A.M.R. A/K/A : IN THE SUPERIOR COURT OF
A.R., A MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.R., FATHER :
: No. 1367 EDA 2018
Appeal from the Decree April 10, 2018
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000010-2018
FID: 51-FN-002198-2018
BEFORE: PANELLA, J., PLATT,* J., and STRASSBURGER,* J.
DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 09,
2018
Here, the Majority concludes that it is “constrained to vacate the decree
in this matter, and remand for further proceedings[,]” because “there is
nothing in the record that clearly indicates Child’s preferences[.]” Majority at
5. Because I find that our Supreme Court’s decision in In re Adoption of
L.B.M., 161 A.3d 172 (Pa. 2017) (plurality), its more recent decision in In re
T.S., __ A.3d __, 2018 WL 4001825 (Pa. 2018), and this Court’s
interpretations of these cases do not demand such a result based on the facts
before us, I respectfully dissent.
We begin with L.B.M. In that seminal case, our Supreme Court held
“that [23 Pa.C.S. § ]2313(a) requires the appointment of counsel who serves
the child’s legal interests in contested, involuntary [termination of parental
rights (TPR)] proceedings.” 161 A.3d at 180. “[A] child’s legal interests are
distinct from his or her best interests, in that a child’s legal interests are
* Retired Senior Judge assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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synonymous with the child’s preferred outcome, while a child’s best interests
must be determined by the court.” In re Adoption of T.M.L.M., 184 A.3d
585, 588 (Pa. Super. 2018).
Recently, in In re T.S., our Supreme Court offered the following.
[D]uring 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; as such, the mandate of Section 2313(a) of
the Adoption Act that counsel be appointed “to represent the
child,” 23 Pa.C.S. § 2313(a), is satisfied where the court has
appointed an attorney-guardian ad litem who represents the
child’s best interests during such proceedings.
Id. at *10.
In the instant matter, the trial court appointed legal counsel, Attorney
Melanie Silverstein, to represent Child’s legal interests. In addition, the trial
court appointed a guardian ad litem (GAL), Attorney Kathleen Taylor, who
represented Child’s best interests. The Majority finds that “Attorney
Silverstein was present at the [termination] hearing, but did not present
evidence, cross-examine witnesses, or argue Child’s legal preferences. The
record is silent as to whether Attorney Silverstein ascertained Child’s legal
preferences during the pendency of appeal. … Attorney Silverstein has not
filed a brief or joined the brief of another party.” Majority at 4-5 (citation to
the record omitted). Thus, the Majority concludes it was necessary to “remand
to the trial court to re-appoint legal counsel and a [GAL] for Child, and direct
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counsel to effectively represent Child by ascertaining Child’s position and
advocating in a manner designed to effectuate that position.” Id. at 6
(internal quotation marks and brackets omitted).
In T.M.L.M., we expounded upon the duties of counsel:
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 Child’s preferred outcome in this case is
synonymous with his best interests. It may be that Child wants no
contact with Mother. Child 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
Child prefers a different outcome. However, pursuant to the
Supreme Court’s opinion in Sections I and II–A of L.B.M., 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. L.B.M., 161 A.3d at 174, 180.
184 A.3d at 590.
Here, the Majority found that the record does not state Child’s preferred
outcome nor does it demonstrate that Attorney Silverstein attempted to
interview her client and ascertain Child’s preferred outcome.1 However, we
have no reason to believe that these things did not occur, which makes this
case distinguishable from other cases cited by the Majority, where this Court
required a remand.
1 At the time of the hearing, Child was nine years and ten months old.
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We begin with T.M.L.M. In that case, the orphans’ court appointed
Attorney Suzann Lehmier to represent the child at the TPR hearing. Attorney
Lehmier stated on the record at the TPR hearing that she did not meet with or
talk to her client. 184 A.3d at 589. She further told the trial court her “only
concern [is] his best interests.” Id. (emphasis omitted). Thus, this Court
concluded that Attorney Lehmier’s representation of the child was deficient.
We next consider In re Adoption of M.D.Q., __ A.3d __, 3322744 (Pa.
Super. 2018). In that case, the children’s father and stepmother petitioned
to terminate the mother’s parental rights. Attorney Courtney Kubista was
appointed as “Attorney for the Children.” Id. at n.1. The record revealed that
Attorney Kubista did indeed interview the children, who were eight and six-
and-a-half years old, and subsequently concluded that “termination was
warranted in this matter in regard to the best interests of [c]hildren.” Id. at
*4. This Court’s review of the record revealed that counsel’s representation
of children was deficient because despite the fact she was appointed as
counsel for the children, she advocated for their best interests without
providing an explanation to the court as to why. Furthermore, counsel’s
statements to the orphans’ court and this Court suggested that she was
speculating as to Children’s preferred outcomes instead of following their
direction. Additionally, the record indicated a potential conflict between the
position counsel took and the position of one of the children. Thus, on appeal,
this Court could not conclude that the children “were provided with counsel
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who represented their legal interests and took direction from [them] to the
extent possible due to their ages.” Id.
Finally, we consider In re Adoption of D.M.C., __ A.3d __, 2018 WL
3341686 (Pa Super. 2018). That case involved two children, one who was 12
and one who was almost 4. The orphans’ court appointed an attorney as
“court-appointed counsel” for the children. Id. at *2. That attorney later
withdrew and new counsel was appointed. However, in neither instance was
it clear whether counsel was appointed as legal counsel or best-interests
counsel, especially because counsel sometimes referred to himself as a GAL
for the children. Furthermore, the record reveals that counsel spoke one time
to the older child, and that conversation occurred the night before the TPR
hearing. In that call, according to counsel, the child indicated “he’s ready for
permanency.” Id. at *3. Thus, the attorney told the orphans’ court that
“permanency” was in his “best interests.” Id. Counsel also suggested a post-
adoption contract agreement.
On appeal, counsel indicated that the child wanted to be adopted, but
also wanted to remain in contact with his mother. Based on the foregoing,
this Court concluded that it is unclear whether the child “received the benefit
of [his] statutorily-required right to client-directed counsel serving [his] legal
interests.” Id. at *5. The failure of the orphans’ court to clarify counsel’s role,
along with counsel’s inherently conflicting representations, required this Court
to remand.
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We now turn to the facts of the instant case. Here, as indicated supra,
Child was appointed both legal counsel and a GAL. Although legal counsel did
not ask any questions at the hearing or file a brief on appeal, there is nothing
in the record that would suggest that counsel failed to perform her duties.2
Thus, the situation in this case is distinguishable from the aforementioned,
and I would conclude that there is no need to remand this case on this basis.
That being said, I would be remiss not to point out that it is often difficult
for this Court to discern whether the attorney is advocating for a child’s
preferred outcome (i.e., legal interests), the attorney’s opinion as to what is
in the child’s best interests, or some combination of the two. The child has a
statutory right to client-directed counsel who must advocate solely for the
child’s preferred outcome regardless of what the attorney personally believes
is in the child’s best interests, unless there is no conflict between a child’s
legal interests and best interests, see T.S., supra. Thus, it is important that
the record is clear as to what position the attorney is advancing. As this is an
ever-changing area of law and this Court attempts to expedite these cases in
order for children to achieve permanency, I suggest that it is best practice for
attorneys and orphans’ courts to place on the record a brief explanation of
which attorney represents which child, the capacity in which the attorney
represents the child, whether the attorney is advocating for a child’s preferred
2
There may be strategic reasons why counsel elected not to have a more
active role.
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outcome, best interests, or both, and what preferred outcome, if any, the child
articulated to counsel.3
In addition, “[c]ounsel’s duty to represent a child does not stop at the
conclusion of the termination of parental rights hearing.” In re Adoption of
T.M.L.M., 184 A.3d 585, 590 (Pa. Super. 2018); see also In re M.T., 607
A.2d 271, 276 (Pa. Super. 1992) (observing that child’s counsel abdicated his
legal responsibilities to his client because counsel, inter alia, failed to file a
brief, indicate that he joined another party's brief, or otherwise notify this
Court of his client’s position). Thus, it is also best practice for counsel to file
a brief or join a brief on appeal to this Court. Moreover, if a child’s position
differs from the outcome of the termination proceeding, counsel has a duty to
seek relief actively, such as by filing an appeal on behalf of the child. See In
re Adoption of J.L., 769 A.2d 1182, 1185 (Pa. Super. 2001).
However, the aforementioned best practices are not required by either
L.B.M. or T.S. at this point in order to satisfy 2313(a).4 Child is entitled to
3For example, when the attorney enters a verbal appearance at the beginning
of the hearing or argues a position at the conclusion of the hearing, the
attorney could state his or her name, the firm or organization for which he or
she works, the child he or she represents, whether the child supports or
opposes the TPR petition or has a position that is more nuanced or incapable
of ascertainment, and whether the position advocated by the attorney is based
upon the client’s preferred outcome or the attorney’s opinion regarding the
child’s best interests.
4 We recognize that section 6311 of the Juvenile Act does indeed mandate
some of these best practices for dependency proceedings. See 42 Pa.C.S.
§ 6311(b)(9). However, TPR hearings are governed by the Adoption Act,
which at this time imposes no similar requirements. See 23 Pa.C.S. § 2313.
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legal counsel, and Child indeed had that here. Counsel, whether they
represent children or adults, are bound to follow the Pennsylvania Rules of
Professional Conduct. As in all other areas of law, we presume counsel to be
effective, so unless it is apparent from the record before us that there may be
a question as to whether a child was deprived of the child’s statutory right to
legal-interest counsel, this Court should not remand for clarification of
counsel’s role regarding a child’s preference.
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