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2019 PA Super 180
IN THE INTEREST OF: Z.N.F., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: H.F., MOTHER :
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: No. 2889 EDA 2018
Appeal from the Decree Entered September 11, 2018
In the Court of Common Pleas of Philadelphia County
Family Court at No: CP-51-AP-0000146-2017
BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
OPINION BY STABILE, J.: FILED JUNE 07, 2019
H.F. (“Mother”) appeals from the decree entered on September 11,
2018, in the Court of Common Pleas of Philadelphia County, that involuntarily
terminated her parental rights to her daughter, Z.N.F. (“Child”), born in July
of 2013. Upon review, we affirm.
This appeal arises from the decrees originally entered on February 24,
2017, that involuntarily terminated Mother’s parental rights to Child and her
older sibling, Z.E.A.F., born in May of 2011 (collectively, “the children”),
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).1, 2 This Court
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1 By separate decree entered on February 24, 2017, the trial court
involuntarily terminated the parental rights of Child’s father, J.F., who is not
a party to this appeal.
2 The Philadelphia Department of Human Services (“DHS”) filed petitions for
the involuntary termination of Mother’s parental rights on February 7, 2017.
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vacated the original decrees and remanded the case for the trial court to hold
a hearing to determine, in part, what role Athena Mary Dooley, Esquire,
performed on behalf of the children during the involuntary termination
proceeding on February 24, 2017. See In re Z.N.F. & Z.E.A.F., 192 A.3d
232 (Pa. Super. filed May 9, 2018) (unpublished memorandum). In so doing,
the panel explained that Attorney Dooley is identified in the transcript of the
proceedings as a child advocate. However, it was unable to identify whether
Attorney Dooley acted in the role of a guardian ad litem (“GAL”) who was
appointed to represent the children’s best interests, as an independent
attorney who was appointed to represent the children’s legal interests, or was
acting in both capacities simultaneously. See id.
In vacating the original decrees and remanding the case, the panel
further directed the trial court to determine whether the children’s legal and
best interests were in conflict and, further, whether there was a conflict
between each child’s interests. If the court found that a conflict existed and/or
there was a conflict between each child’s separate interests, then we directed
the court to appoint new counsel to protect the children’s legal interests. If
the court appointed new counsel, then we directed the court to ascertain
whether a new involuntary termination proceeding must occur with the
inclusion of proper representation of the children’s legal interests. See id.
In In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017), filed on March
28, 2017, our Supreme Court held that Section 2313(a) of the Adoption Act,
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23 Pa.C.S.A. § 2313(a),3 requires that a child who is the subject of a contested
involuntary termination proceeding has a statutory right to counsel who
discerns and advocates for the child’s legal interests, which the Court defined
as a child’s preferred outcome. Id. at 180. This Court held that we “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 Adoption of T.M.L.M., 184 A.3d 585, 588 (Pa. Super. 2018)
(citing In re K.J.H., 180 A.3d 411, 414 (Pa. Super. 2017)).
In In re T.S., 192 A.3d 1080 (Pa. 2018), filed on August 22, 2018, our
Supreme Court concluded that the children’s legal interests in that case were
not ascertainable during the termination proceeding because they were only
two and three years old. The Court recognized that Section 2313(a) “does
not expressly contemplate the circumstance that the child’s wishes cannot be
ascertained.” Id. at 1089. Therefore, the T.S. Court looked to the analogous
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3 Section 2313(a) provides:
(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.A. § 2313(a).
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provision of the Juvenile Act, “which does contemplate that situation.” Id.
The Court explained:
Section 6311 of the Juvenile Act initially states that the guardian
ad litem is to “represent the legal interests and the best interests
of the child.” 42 Pa.C.S. § 6311(a). It then specifies that the
guardian ad litem must “[a]dvise the court of the child’s wishes to
the extent that they can be ascertained and present to the court
whatever evidence exists to support the child’s wishes.” 42
Pa.C.S. § 6311(b)(9) (emphasis added). By straightforward
implication, if the wishes of the child cannot be ascertained, the
GAL has no duty to “advise the court” of such wishes. For
purposes of the proceeding, such wishes do not exist. That is not
merely a legal fiction. As explained above, it comports with reality
to the extent any participant in the proceedings can discern
it. . . .
Such a circumstance does not negate the mandate of Section
2313(a) that counsel be appointed to “represent the child” in
contested TPR proceedings. It does, however, bear on the
question of whether a conflict arises if the trial court allows the
attorney-GAL to fulfill that mandate. As a 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.
Id. at 1089-1090. The T.S. Court concluded, “where an attorney-GAL is
present in such proceedings undertaking the latter task (advocating for the
child’s best interests), Section 2313(a) does not require the appointment of
another lawyer to fulfill the former (advancing the child’s unknowable
preference).” Id. at 1090.
Instantly, the certified record reveals that, on September 11, 2018, the
trial court held a hearing on remand to determine whether a conflict existed
between the children’s legal and best interests. Attorney Dooley testified
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during the hearing that, at the time of the involuntary termination proceeding
on February 24, 2017, when Child was three years old, and her older sibling
was five years old, she “had not seen the children.” N.T., 9/11/18, at 9.
However, Attorney Dooley testified that she met with the children on the
Sunday preceding the hearing on remand, when Child was then age five, and
her sibling age seven. Id. at 7. She testified that the children “did not indicate
that they wanted to go anywhere else other than where they were.” Id. at 9.
The record reveals that the children are in kinship care with their paternal
aunt, where they were placed in July of 2015, when Child had just turned two
years old, and her sibling was four years old. N.T., 2/24/17, at 7-8.
On inquiry by Mother’s counsel, Attorney Dooley testified that she did
not ask the children whether they wanted to be adopted “because they don’t
really understand that.” N.T., 9/11/18, at 9. Samirah Cobb, the Community
Umbrella Agency (“CUA”) case manager, testified that, since May of 2018, she
has seen the children on a monthly basis. Id. at 10. She testified on cross-
examination by Mother’s counsel:
Q. Did you ever talk to them about adoption?
A. Yes, I have.
Q. And what did they say?
A. I couldn’t use the term adoption because it’s nothing they would
understand[.] [W]hen I ask[ed] them, “Where would, you know,
if you guys had to move where would you guys want to live?”[,]
[t]hey informed me, both of them, informed me that they would
like to stay with their aunt.
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Id. at 13. Ms. Cobb explained on direct examination:
Q. Would having the conversation about [the children’s] desire to
be adopted, would they be able to answer that?
A. No.
Q. Is it better off talking to them [about] where they want to live?
A. Yes.
Q. And so having a conversation to determine whether or not
there’s a conflict in their interest using the term adoption would
be confusing to them?
A. Yes.
Id. at 10-11. Moreover, on inquiry by the trial court, Ms. Cobb testified:
THE COURT: In the time that you’ve been on the case and your
discussion with the prior worker did the children ever indicate that
they prefer to live with [M]other?
A. No.
Id. at 14.
The trial court concluded that Attorney Dooley acted as a GAL and as
the children’s counsel during the February 24, 2017 termination proceeding.
However, based on the foregoing testimony, the court concluded that no
conflict existed between the children’s legal and best interests. Id. Therefore,
the court found no need for a new termination proceeding.
On September 11, 2018, the court re-entered the original decrees on
the docket. On October 3, 2018, Mother filed a notice of appeal along with a
concise statement of errors complained of on appeal with respect to Child only.
The trial court filed its Rule 1925(a) opinion on January 17, 2019.
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On appeal, Mother raises the following issue for our review:
Whether [t]he trial court erred by taking testimony from the [GAL]
where she was acting as a[n] attorney and a litigant at the same
time and where her testimony was regarding the desires of the
child almost 18 months since the original [termination of parental
rights] testimony was taken?
Mother’s brief at 5.
Initially, we observe that the involuntary termination of parental rights
is governed by 23 Pa.C.S.A. § 2511. When reviewing an order granting or
denying termination of parental rights, we accept factual findings and
credibility determinations supported by the record, and we review whether the
court committed an abuse of discretion or error of law. In re T.S., 192 A.3d
at 1087 (citation omitted). We review questions of law de novo. Id. (citation
omitted).
In this case, Mother does not question whether the trial court committed
an abuse of discretion and/or error of law with respect to Section 2511.
Rather, as detailed infra, her sole issue relates to whether the court erred on
remand by not holding a new termination proceeding where Child’s legal
interests would be represented by a separately appointed counsel.
Mother argues in her brief that the trial court erred because Attorney
Dooley “was permitted to serve in dual roles but admitted that she did not ask
her client at the time of the first [involuntary termination proceeding] and
again at the second . . . hearing whether [C]hild wanted to be adopted.”
Mother’s brief at 10. With respect to the foregoing witnesses questioning Child
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on remand about where she wanted to live and not whether she wanted to be
adopted, Mother argues that adoption “involves a panoply of rights and does
not only involve a child’s residence.” Id. at 11. As such, she argues that
Attorney Dooley did not comply with this Court’s directive on remand to
“determin[e] [C]hild’s position on adoption.” Id. at 9.
Further, Mother rejects the testimony that Child was unable to
understand the concept of “adoption.” She asserts that in In re T.S., supra,
our Supreme Court “admits that a child of five or six . . . may be able to
express his or her desires with respect to adoption.” Mother’s brief at 10
(citing In re T.S., 192 A.3d at 1089, n. 17). For these reasons, Mother argues
that the trial court erred by re-entering the original decree with respect to
Child, and she requests that we vacate the decree and remand for a new
involuntary termination proceeding.
As discussed above, and contrary to Mother’s assertion, this Court did
not direct on remand that Attorney Dooley determine Child’s position on
“adoption.” Mother provides no legal authority, and we are aware of none,
that provides a child’s position on “adoption” is the requisite inquiry in
determining his or her legal interests in a contested involuntary termination
proceeding.
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We agree that adoption “involves a panoply of rights.”4 However, it is
important to note that, in cases such as this where the petitioner is a child
welfare agency, there is no requirement that adoption be presently
contemplated to effect the involuntary termination of parental rights. See 23
Pa.C.S.A. § 2512(b) (stating, in part, “If the petitioner is an agency it shall
not be required to aver that an adoption is presently contemplated nor that a
person with a present intention to adopt exists.”); see also In re Adoption
of B.J.R., 579 A.2d 906, 915 (Pa. Super. 1990) (stating that the involuntary
termination of parental rights is not barred when there is no indication that
CYS has found a prospective adoptive family).
Even if a Child’s position on “adoption” was part of the requisite inquiry
in determining her legal interests, the trial court in this case found it “did not
exist[,] or cannot be ascertained[,] due to Child’s immaturity. This was not a
legal fiction but comported with the reality that the participants in the
proceedings could not with absolute certainty discern the wishes and wants of
such a young child.” Trial Court Opinion, 1/17/19, at 4. The court found that
Attorney Dooley ascertained the Child’s preferred outcome of the involuntary
termination proceeding to the extent she was able in light of Child’s inability
to understand the concept of adoption due to her age. Insofar as the
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4Our Supreme Court explained long ago, “Adoption is a purely statutory right
unknown at the common law. To effect an adoption, the legislative provisions
of the Adoption Act must be strictly complied with.” In re Adoption of
E.M.A., 409 A.2d 10, 11 (Pa. 1979).
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testimonial evidence revealed that Child never indicated a preference to live
with Mother, we discern no error or abuse of discretion by the court in
concluding that a conflict did not exist between Child’s legal and best interests.
See In re T.S., 192 A.3d at 1089-1090.
Finally, to the extent that Mother relies on In re T.S., supra, we
observe that she has mischaracterized it. The Court held that the children’s
legal interests, i.e., preferred outcomes, in that case were not ascertainable
because they were only two and three years old. The Court stated, in dicta,
“Conversely, 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.’ Pa.R.P.C. 1.14,
Explanatory Comment 1.”5 In re T.S., 192 A.3d at 1089, n 17 (emphasis
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5 Rule 1.14 provides as follows, in relevant part:
Rule 1.14. Client with Diminished Capacity
...
EXPLANTORY COMMENT
1§ The normal client-lawyer relationship is based on the
assumption that the client, when properly advised and assisted, is
capable of making decisions about important matters. When the
client is a minor or suffers from a diminished mental capacity,
however, maintaining the ordinary client-lawyer relationship may
not be possible in all respects. In particular, a severely
incapacitated person may have no power to make legally binding
decisions. Nevertheless, a client with diminished capacity often
has the ability to understand, deliberate upon, and reach
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added). As such, contrary to Mother’s assertion, the Court’s observation
related to child custody matters, not to adoption. Therefore, T.S. is not
applicable for the proposition Mother asserts.
For the foregoing reasons, we discern no abuse of discretion by the trial
court in concluding that a conflict does not exist between Child’s legal and best
interests. It follows that a new involuntary termination proceeding that
included separately appointed counsel to represent Child’s legal interests was
unnecessary. Accordingly, we affirm the decree involuntarily terminating
Mother’s parental rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/19
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conclusions about matters affecting the client’s own well-being.
For example, children as young as five or six years of age,
and certainly those of ten or twelve, are regarded as having
opinions that are entitled to weight in legal proceedings
concerning their custody.
Pa.R.P.C. 1.14, Explanatory Comment 1 (emphasis added).
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