J-S67031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.Z.W.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.T.W., MOTHER : No. 914 EDA 2017
Appeal from the Order March 7, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000437-2016,
CP-51-DP-0002518-2014
IN THE INTEREST OF: T.Q.K.W.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.T.W., MOTHER : No. 915 EDA 2017
Appeal from the Order March 7, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000438-2016,
CP-51-DP-0002521-2014
IN THE INTEREST OF: T.Q.T.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.T.W., MOTHER : No. 916 EDA 2017
Appeal from the Order March 7, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000439-2016,
CP-51-DP-0002520-2014
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 12, 2019
In these consolidated appeals, Appellant, S.T.W. (“Mother”) challenges
the orders entered in the Philadelphia County Court of Common Pleas,
Family Court, which terminated her parental rights to her three children,
____________________________________
* Former Justice specially assigned to the Superior Court.
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T.Z.W.T. (born in August 2014), T.Q.K.W.T. (born in August 2011) and
T.Q.T.W. (born in April 2013). We affirm the court’s orders as to T.Z.W.T.
and T.Q.T.W. We also affirm the court’s decision under Section 2511(a) and
(b) with respect to T.Q.K.W.T., but we must vacate that termination order
and remand for appointment of counsel under 23 Pa.C.S.A. § 2313(a), and
for further evaluation and reconsideration of that termination order under
current prevailing law, without prejudice to reinstate it after
reconsideration.1
The trial court accurately set forth the relevant facts and procedural
history of this case as follows:
In 2014, the family became known to the Department of
Human Services (“DHS”) pursuant to a General Protective
Services (“GPS”) report which alleged that Children resided
in an abandoned house with Mother and her paramour. It
was also alleged that [infant] Child, T.Z.W.T., was
hospitalized at St. Christopher’s Children’s Hospital due to
a blood infection caused by environmental problems in the
abandoned house. On October 24, 2014, T.Z.W.T. was
discharged from St. Christopher’s Hospital…and T.Z.W.T.
was required to have a gastrostomy tube for six months.
Mother had previously been diagnosed with bipolar
disorder and was not receiving treatment.
____________________________________________
1 Disposition of this case was delayed because Mother raised an issue on
appeal, concerning the appointment of legal counsel for Children, that was
pending before this Court en banc in a case recently decided on December
10, 2018. See In re K.R., 200 A.3d 969 (Pa.Super. 2018) (en banc). We
were also awaiting our Supreme Court’s decision in the case of In re T.S.,
___ Pa. ___, 192 A.3d 1080 (2018), cert. denied, ___ U.S. ___, ___ S.Ct.
___, 2019 WL 659981 (Feb. 19, 2019). Since those decisions, the law in
this area has evolved and changed, depending on the circumstances of each
case.
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On the day of Child T.Z.W.T.’s release from the hospital,
October 24, 201[4], DHS obtained an Order of Protective
Custody (“OPC”) for the Children. [On October 27, 2014,
the court appointed the Defender Association of
Philadelphia, Child Advocacy Unit, to serve as counsel and
guardian ad litem (“GAL”) for Children. Additionally, DHS
placed T.Z.W.T. and T.Q.T.W. with their Maternal
Grandmother, and T.Q.K.W.T. with his Maternal Aunt.] On
November 7, 2014, Children were adjudicated dependent
and committed and placed in the DHS foster care.[2] On
January 13, 2015, the Community Umbrella Agency
(“CUA”) held the initial Single Case Plan (“SCP”) meeting.
The goal for the family was reunification. The objectives
identified for Mother were (1) to stabilize her mental
health; (2) to complete intake at the Wedge Medical
Center (“Wedge”); (3) to improve parenting/coping skills;
(4) to continue to actively participate in all parenting,
anger management counseling sessions; (5) to maintain
her relationship with Children; (6) to attend her scheduled
visits with Children; (7) to maintain safe and stable
housing; (8) to enroll in the Achieving Reunification Center
(“ARC”).
On January 15, 2016, Dr. William Russell conducted a
parenting capacity evaluation of Mother. On January 26,
2015, Mother participated in a psychological evaluation
conducted by Genevieve Chaney, PsyD and Timothy
Overton, BA. Pursuant to this Psychological Evaluation,
Dr. Chaney opined that Mother suffered from a mild
intellectual disability and borderline personality. Dr.
Chaney recommended that Mother (1) receive a
psychiatric exam; (2) Mother be referred to Philadelphia’s
Disability Services to determine if she was eligible for
services; (3) Mother should comply with DHS services; (4)
Mother should receive a parenting evaluation; (5) Mother
should be explained things slowly and in writing.
On [May 17], 2016, DHS filed the underlying Petition to
____________________________________________
2Children continued to reside with their foster caregivers, who have become
pre-adoptive resources for Children.
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Terminate Mother’s Parental Rights to Child[ren]. Prior to
the filing of the Petition, Mother had failed to comply with
her SCP objectives and Mother had failed to enroll in the
ARC program for housing and anger management. She
also failed to enroll in domestic violence counseling.
Mother was also inconsistent with participating in her
mental health treatment and Mother had not stabilized her
mental health. On March 7, 2017[,] this [c]ourt
terminated Mother’s parental rights to Children pursuant to
23 Pa.C.S.A. § 2511(a)(1), (2), (5), …(8)[, and (b)3]. The
[c]ourt ruled that [Children’s] goal be changed to
adoption. Thereafter, Mother filed [timely] Notice[s] of
Appeal on March 17, 2017[, and concise statements of
errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i)].
(Trial Court Opinion, filed May 23, 2017, at 3-5) (internal citations omitted).4
Mother raises four issues for our review:
DID THE DEPARTMENT OF HUMAN SERVICES (“DHS”)
SUSTAIN ITS BURDEN UNDER 23 PA.C.S.A. § 2511(A)(1),
(2), (5), OR (8) THAT MOTHER’S RIGHTS SHOULD BE
TERMINATED WHEN THERE WAS EVIDENCE THAT MOTHER
HAD COMPLETED AND/OR HAD BEEN ACTIVELY
COMPLETING HER PERMANENCY GOALS?
WAS THERE SUFFICIENT EVIDENCE PRESENTED TO
ESTABLISH UNDER 23 PA.C.S.A. § 2511(B) THAT IT WAS
IN THE BEST INTERESTS OF…CHILDREN TO TERMINATE
MOTHER’S PARENTAL RIGHTS?
DID THE [TRIAL] COURT ERR WHEN IT MADE A SPECIFIC
____________________________________________
3 The court also terminated the parental rights of Children’s father, A.T.
(“Father”). Father is not a party to this appeal.
4 We see no reason to involve or discuss in these appeals the recent decision
of Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969 (2018)
(requiring prospectively, separate notices of appeal from single orders which
resolve issues arising on separate trial court docket numbers). Mother’s
appeals predate Walker.
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FINDING OF FACT BY RELYING ON DHS “EXHIBIT A”
ENTITLED “STATEMENT OF FACTS” THAT WAS ATTACHED
TO THE PETITIONS FOR GOAL CHANGE AND TERMINATION
OF PARENTAL RIGHTS WHEN THERE WAS NO
STIPULATION OR TESTIMONY PRESENTED AS TO THE
“FACTS” RELIED UPON IN THAT EXHIBIT?
DID THE [TRIAL] COURT FULLY CONSIDER ALL
NECESSARY FACTORS PURSUANT TO THE PENNSYLVANIA
JUVENILE ACT, SPECIFICALLY 42 PA.C.S.A. § 6351(E)
[AND] (F), IN ITS DETERMINATION THAT THE GOAL OF
ADOPTION IS IN THE CHILDREN’S BEST INTEREST?
(Mother’s Brief at 4).5
The standard and scope of review applicable in termination of parental
rights cases are as follows:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent
evidence. Absent an abuse of discretion, an error of law,
or insufficient evidentiary support for the trial court’s
decision, the decree must stand. Where a trial court has
granted a petition to involuntarily terminate parental
rights, this Court must accord the hearing judge’s decision
the same deference that it would give to a jury verdict.
We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s
decision is supported by competent evidence.
Furthermore, we note that the trial court, as the finder of
fact, is the sole determiner of the credibility of witnesses
and all conflicts in testimony are to be resolved by the
finder of fact. The burden of proof is on the party seeking
termination to establish by clear and convincing evidence
the existence of grounds for doing so.
The standard of clear and convincing evidence means
____________________________________________
5 For purposes of disposition, we have reordered Mother’s issues.
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testimony that is so clear, direct, weighty, and convincing
as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue.
We may uphold a termination decision if any proper basis
exists for the result reached. If the trial court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even though the record could support an
opposite result.
In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal
denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted).
We combine Mother’s first, second, and third issues, in which she
argues she had been actively treating her mood disorder at the time DHS
filed the petition for involuntary termination of her parental rights. Mother
asserts her mental health had improved to the point where she no longer
needed medication. Mother maintains she was participating in her mental
health treatment at the Wedge facility. Mother contends she was unable to
complete therapy because her therapist stopped working at that location,
and no one contacted Mother about continuing treatment with a new
therapist. Mother highlights the CUA caseworker’s testimony that Mother’s
home would be safe and appropriate for Children once she obtained beds,
and that Mother was no longer a danger to Children. Mother claims she
remedied the mental health and housing issues, which brought Children into
DHS’ care. Mother challenges the court’s supposition that she was residing
with Father. Mother insists she has a bond with Children. Mother submits
the court failed to consider the effect of Children not residing together in one
household.
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Mother also complains the trial court opinion cited to facts presented in
DHS’ “Statement of Facts” (attached as an exhibit to its termination
petition), where those facts were not established at the termination hearing.
Mother submits the “Statement of Facts” is nothing more than unproven
allegations. Mother concludes DHS failed to meet its burden under Section
2511(a) and (b), and this Court must reverse the order terminating Mother’s
parental rights to Children. We disagree that Mother is entitled to relief on
these grounds.
The court granted DHS’ petition for involuntary termination of Mother’s
parental rights on the following grounds:
§ 2511. Grounds for involuntary termination
(a) General Rule.―The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing
of the petition either has evidenced a settled purpose
of relinquishing parental claim to a child or has
refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental
well-being and the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.
* * *
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
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with an agency for a period of at least six months,
the conditions which led to the removal or placement
of the child continue to exist, the parent cannot or
will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve
the needs and welfare of the child.
* * *
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed
from the date of removal or placement, the
conditions which led to the removal or placement of
the child continue to exist and termination of
parental rights would best serve the needs and
welfare of the child.
* * *
(b) Other considerations.―The court in terminating
the rights of a parent shall give primary consideration to
the developmental, physical and emotional needs and
welfare of the child. The rights of a parent shall not be
terminated solely on the basis of environmental factors
such as inadequate housing, furnishings, income, clothing
and medical care if found to be beyond the control of the
parent. With respect to any petition filed pursuant to
subsection (a)(1), (6) or (8), the court shall not consider
any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to
the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). “Satisfaction of any one
subsection of Section 2511(a), along with consideration of Section 2511(b),
is sufficient for involuntary termination of parental rights.” In re K.Z.S.,
946 A.2d 753, 758 (Pa.Super. 2008).
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“Under [S]ection 2511, the trial court must engage in a bifurcated
process.” In re I.J., 972 A.2d 5, 10 (Pa.Super. 2009).
The initial focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies at least one of
the…statutory grounds delineated in section 2511(a). If
the trial court determines that the parent’s conduct
warrants termination under section 2511(a), then it must
engage in an analysis of the best interests of the
child…under section 2511(b), taking into primary
consideration the developmental, physical, and emotional
needs of the child.
* * *
[A] best interest of the child analysis under [section]
2511(b) requires consideration of intangibles such as love,
comfort, security, and stability. To this end, this Court has
indicated that the trial court must also discern the nature
and status of the parent-child bond, paying close attention
to the effect on the child of permanently severing the
bond. Moreover, in performing a “best interests”
analysis[, t]he court should also consider the importance
of continuity of relationships to the child, because severing
close parental ties is usually extremely painful. The court
must consider whether a natural parental bond exists
between child and parent, and whether termination would
destroy an existing, necessary and beneficial relationship.
Most importantly, adequate consideration must be given to
the needs and welfare of the child.
Id. at 10-12 (internal citations and quotation marks omitted).
Section 2511 outlines certain irreducible minimum requirements of
care that parents must provide for their children and a parent who cannot or
will not meet the requirements may properly be considered unfit and have
her parental rights terminated. In re B.L.L., 787 A.2d 1007 (Pa.Super.
2001).
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There is no simple or easy definition of parental
duties. Parental duty is best understood in relation
to the needs of a child. A child needs love,
protection, guidance, and support. These needs,
physical and emotional, cannot be met by a merely
passive interest in the development of the child.
Thus, this [C]ourt has held that the parental
obligation is a positive duty which requires
affirmative performance.
This affirmative duty encompasses more than a
financial obligation; it requires continuing interest in
the child and a genuine effort to maintain
communication and association with the child.
Because a child needs more than a benefactor,
parental duty requires that a parent exert [herself]
to take and maintain a place of importance in the
child’s life.
Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of …her ability, even in difficult circumstances.
A parent must utilize all available resources to preserve
the parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship.
In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted). Accordingly, “a
parent’s basic constitutional right to the custody and rearing of…her child is
converted, upon the failure to fulfill…her parental duties, to the child’s right
to have proper parenting and fulfillment of his…potential in a permanent,
healthy, safe environment.” Id. at 856.
“When conducting a bonding analysis, the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
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well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (internal
citations omitted). “Above all else[,] adequate consideration must be given
to the needs and welfare of the child. A parent’s own feelings of love and
affection for a child, alone, do not prevent termination of parental rights.”
Id. (internal citations omitted). Further, “the general rule disfavoring
separation of siblings is not controlling” in a termination case. In re R.P.,
956 A.2d 449, 458 (Pa.Super. 2008). Rather, the court has discretion to
place siblings separately if it serves their best interests, as “[t]he health,
safety, and welfare of each child supersede all other considerations.” Id.
Instantly, the trial court explained:
Children were adjudicated dependent on November 7,
2014. The record demonstrated Mother’s ongoing
unwillingness to provide parental care or control for
Children; to perform any parental duties and a failure to
remedy the conditions that brought Children into care.
The [c]ourt found clear and convincing evidence that
termination of Mother’s parental rights would be in the
best interest of Children pursuant to 23 Pa.C.S.A. §
2511(a)(1), (2), (5), and (8) and 23 Pa.C.S.A. § 2511(b).
At the [t]ermination [h]earing, Dr. William Russell testified
in reference to his Parental Capacity Evaluation of Mother
which occurred on January 15, 2016. Dr. Russell testified
that at the time of the evaluation he had concluded that
Mother was not able to provide safety to her children due
to her mood instability. Dr. Russell testified that Mother
required consistent mental health treatment to achieve the
mood stability required for her to provide safety for her
Children. Dr. Russell testified that as a result of Mother’s
lack of mood stability she was unable to resolve housing
issues and had difficulties interacting with other people.
Dr. Russell testified that Mother had been diagnosed as
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being [bipolar] and having symptoms of a borderline
personality disorder requiring that Mother receive
consistent mental health treatment.
At the termination hearing, the CUA Representative
testified that Mother was made aware of her SCP
objectives. The objectives identified for Mother were (1)
stabilize her mental health; (2) to complete intake at the
Wedge Medical Center (“Wedge”); (3) to improve
parenting/coping skills; (4) to continue to actively
participate in all parenting, anger management counseling
sessions; (5) to maintain her relationship with Children;
(6) to attend her scheduled visits with Children; (7) to
maintain safe and stable housing; (8) to enroll in the
Achieving Reunification Center (“ARC”).
The CUA Representative testified that Mother had failed to
attend domestic violence training, which was significant
due to a history of domestic violence between Mother and
Father. The CUA Representative testified it was her belief
that Mother and Father lived together. The CUA
Representative testified that Mother was inconsistent with
her mental health treatment. The CUA Representative
testified that the pre-adoptive parent of T.Q.K.W.T.
(“Maternal Aunt”), was able to provide the child with love,
safety and stability and support. The CUA Representative
testified that T.Z.W.T. and T.Q.T.W. were in the care of
their maternal grandmother and that she was able to
provide love, safety, stability and support. The CUA
Representative testified that Children were bonded to their
pre-adoptive foster parents. The CUA Representative
testified that changing Children’s goals from reunification
to adoption would not cause irreparable harm to Children.
The CUA Representative also testified that it would be in
Children’s best interests to be adopted. The CUA
Representative testified that it was in Children’s best
interests that Mother’s parental rights be terminated. The
CUA Representative testified that the termination of
Mother’s parental rights would not cause Children
irreparable harm.
This [c]ourt found the testimony of the CUA
Representative and Dr. Russell to be credible and accorded
[their] testimonies great weight. Based upon this
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testimony and the documents in evidence, this [c]ourt
found clear and convincing evidence to terminate Mother’s
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2),
(5) and (8) as Mother failed to remedy the conditions that
brought her Children into care. The [c]ourt further
concluded that the termination of Mother’s parental rights
would be in the best interest of Children pursuant to 23
Pa.C.S.A. § 2511(b). This [c]ourt concluded that the
respective pre-adoptive foster parents were able to meet
Children’s needs.
(Trial Court Opinion at 5-8) (internal citations and footnote omitted).
Additionally, the court stated on the record at the conclusion of the
termination hearing:
All right. Based upon the testimony I heard, the exhibits
presented, which I accept, and based upon the credibility
of the CUA worker, Dr. Russell, and the visitation coach, I
find them to be credible. I do not find the testimony of
Father or Mother to be credible. They—I’m not convinced
that they’re not seeing each other. Whether they’re living
together or not, it’s curious that they’re both using [the
same] address….
Father as late as 2016, it’s appearing on his—his criminal
extract. He gave the [c]ourt that address…. And Mr.
Jenkins, the visitation coach, said he was driving Mother
home, and passed in front of the house and who happened
to be there? [Father]. And that was in November. So,
she was living there in November. He was living there.
And I’m convinced he’s probably living there to—to this
day in violation of the [c]ourt order as late as November
14th, when I heard the case, and [M]aternal
[G]randmother testified that Mother was taking the kids to
see Father.
And there was a violent history. She testified to that. And
there’s a safety issue. Don’t tell me there’s no safety issue
with him around and—and a domestic violence history that
[C]hildren if—if they were reunited with either parent has
gone unaddressed. There’s—there’s never been any
domestic violence counseling.
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As far as—you’re saying this is a housing issue. The—Dr.
Russell clearly testified mental health is a big issue in this
case. And she stopped going in June on her own and
never re-enrolled according to her because nobody called
her. Well, obviously, she needs continuing mental health
treatment.
And I mean Father’s testimony is just totally incredible
with regard to where he lives and what the living
arrangements are. …
As far as the bond—the bonding of [M]other, I believe
there’s a bond. But it’s not a parental bond. It—it’s a
bond of someone that—that apparently has an attachment
to [C]hildren. And they’re glad to see her when—when she
gets there. But she’s not a parent at this point. Hasn’t
been for the last two-and-a-half years that these children
have been in placement.
(N.T. Termination Hearing, 3/7/17, at 165-67). The record supports the
court’s analysis.
The record makes clear Children’s primary bond is with their
respective pre-adoptive parents. (See id. at 92; 118-19; 167). As well, the
fact that T.Q.K.W.T. is in a separate pre-adoptive home is not controlling,
where his continued placement with Maternal Aunt serves his best interests.
See In re R.P., supra. Further, the record supports each of the facts
outlined by DHS in its “Statement of Facts” attached to its termination
petition. That the court referred to the “Statement of Facts” in its opinion,
over other places in the record, is of no moment, where the record supports
the court’s decision to terminate Mother’s parental rights to Children under
Section 2511(a)(1), (2), (5), (8), and (b). See In re Adoption of K.J.,
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supra.
Notwithstanding the formal statement of her fourth issue, Mother
argues the court failed to appoint separate legal counsel for Children to
express their preferred outcome in this case. Mother concludes that recent
changes in the law require this Court to reverse and remand for the
appointment of separate legal counsel and a de novo review of the
appropriateness of the goal change6 and termination decision. We agree
with Mother on this issue but only with respect to the oldest child,
T.Q.K.W.T.
Section 2313 of the Domestic Relations Code governs representation
of Children in a contested termination proceeding, in pertinent part, as
follows:
§ 2313. Representation
(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.
____________________________________________
6 Mother mentions, but fails to develop, a separate cogent argument
concerning the appropriateness of the goal change decision. Instead, she
focuses her argument on the court’s failure to appoint separate legal counsel
to express Children’s preferred outcome in this case.
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23 Pa.C.S.A. § 2313(a). Our Supreme Court recently interpreted and
applied Section 2313(a) as follows:
[A] majority of the Court agreed on several points: (a) in
the context of contested termination-of-parental-rights
(“TPR”) proceedings, the first sentence of Section 2313(a)
requires that the common pleas court appoint an attorney
to represent the child’s legal interests, i.e., the child’s
preferred outcome; (b) where there is a conflict between
the child’s legal interests and his best interests, an
attorney-guardian ad litem (an “attorney-GAL”), who
advocates for the child’s best interests, cannot
simultaneously represent the child’s legal interests; and (c)
in such a circumstance, the failure to appoint a separate
attorney to represent the child’s legal interests constitutes
structural error, meaning it is not subject to a harmless-
error analysis.
In re T.S. at ___, 192 A.3d at 1082 (summarizing agreed-upon positions of
In re Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172 (2017)) (internal
footnotes omitted). Our Supreme Court has made clear: “The statutory
right under Section 2313(a) belongs to the child, not the parent.” T.S.,
supra at ___, 192 A.3d at 1087. Thus, “the failure of any party, including
Mother, to affirmatively request separate counsel for the children
cannot…[constitute] waiver.” Id.
Nevertheless, “if the wishes of the child cannot be ascertained [due to
a child’s young age], the GAL has no duty to advise the court of such wishes.
For purposes of the proceeding, such wishes do not exist.” Id. at ___, 192
A.3d at 1089-90. Consequently, where an attorney-GAL is appointed to
represent the child’s best interests, Section 2313(a) does not require the
appointment of separate legal counsel to advance child’s legal interests, if
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the child is too young to articulate a “preferred outcome.” Id. (establishing
presumption that child three years of age or younger cannot form
subjective, articulable preference that would necessitate appointment of
separate legal counsel to advocate during termination proceeding).
Additionally, the court’s failure to appoint separate legal counsel does
not constitute reversible error, so long as the child is represented by an
attorney-GAL and the record makes clear no conflict exists between the
child’s best interests and legal interests. See, e.g., In re K.R., supra
(holding court’s failure to appoint separate counsel to represent children’s
legal interests did not constitute reversible error, where attorney-GAL
expressed children’s preferences on record and confirmed no conflict existed
between children’s legal and best interests); In re G.M.S., 193 A.3d 395
(Pa.Super. 2018) (declining to remand for appointment of separate legal
counsel, where expert testified at termination hearing that she interviewed
child who preferred to be adopted by maternal grandmother; child’s legal
interests were aligned with child’s best interests).
Instantly, on October 27, 2014, the court appointed the Defender
Association of Philadelphia, Child Advocacy Unit, to serve as counsel and GAL
for Children throughout all of the relevant proceedings in this case. The
court did not appoint separate legal counsel for Children for the termination
proceedings. At the time of the termination hearing on March 7, 2017,
T.Q.K.W.T. was five years old, T.Q.T.W. was three years old, and T.Z.W.T.
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was two years old.
Initially, we observe that although the issue concerning appointment
of separate legal counsel for Children was raised for the first time on appeal,
we can review it. See In re T.S., supra. Nevertheless, that claim merits
no relief concerning the two Children, T.Q.T.W. and T.Z.W.T., as they were
too young to articulate a preferred outcome at the time of the termination
hearing. See id. Regarding the oldest child, T.Q.K.W.T., however, the
record shows the court failed to appoint separate legal counsel, as required
under Section 2313(a) and current prevailing law. See 23 Pa.C.S.A. §
2313(a); In re T.S., supra. Significantly, the record lacks any evidence of
T.Q.K.W.T.’s preferred outcome in this matter, even though the record
demonstrates that his primary bond is with Maternal Aunt, who is meeting
all of his needs.
Under these circumstances, we must vacate the termination order
regarding T.Q.K.W.T., without prejudice, and remand the case for further
proceedings. Upon remand, the court shall appoint separate counsel to
represent T.Q.K.W.T.’s legal interests. After review of the prior proceedings
and consultation with T.Q.K.W.T., legal-interests counsel shall notify the
court of T.Q.K.W.T.’s preferred outcome and whether a new hearing is
necessary for an opportunity for counsel to advocate on T.Q.K.W.T.’s behalf.
The court shall conduct a new hearing only if a new hearing is necessary to
explore T.Q.K.W.T.’s preferred outcome in comparison to his best interests.
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See In re: Adoption of T.M.L.M., 184 A.3d 585 (Pa.Super. 2018)
(vacating and remanding for appointment of legal-interests counsel, where
child was five years old at termination hearing, and no evidence in record
showed consideration of child’s preferred outcome). Compare In re K.R.,
supra; In re G.M.S., supra. Accordingly, we affirm the court’s orders as to
T.Z.W.T. and T.Q.T.W. We also affirm the court’s decision under Section
2511(a) and (b) with respect to T.Q.K.W.T., but we must vacate that
termination order and remand for appointment of counsel for T.Q.K.W.T.,
under 23 Pa.C.S.A. § 2313(a), and for reconsideration of that termination
order under current prevailing law, without prejudice to reinstate the
termination order following further evaluation and reconsideration.
Orders affirmed as to T.Z.W.T. and T.Q.T.W.; order regarding
T.Q.K.W.T. is vacated without prejudice and his case is remanded for the
appointment of legal-interests counsel under 23 Pa.C.S.A. § 2313(a) and for
further evaluation and reconsideration. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/19
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In the Interest of: T.Z.W.T, a Minor
Combined Opinion