J-S28011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: K.B.D., A MINOR              :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
 APPEAL OF: B.K.D., FATHER           :
                                     :
                                     :
                                     :
                                     :
                                     :   No. 119 MDA 2018

                Appeal from the Decree December 21, 2017
   In the Court of Common Pleas of Lancaster County Orphans' Court at
                           No(s): 2017-02173

 IN RE: U.S.D., A MINOR              :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
 APPEAL OF: B.K.D., FATHER           :
                                     :
                                     :
                                     :
                                     :
                                     :   No. 163 MDA 2018

                Appeal from the Decree December 21, 2017
   In the Court of Common Pleas of Lancaster County Orphans' Court at
                           No(s): 2174 of 2017

 IN RE: N.M.D., A MINOR              :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
 APPEAL OF: B.K.D., FATHER           :
                                     :
                                     :
                                     :
                                     :
                                     :   No. 164 MDA 2018

                Appeal from the Decree December 21, 2017
   In the Court of Common Pleas of Lancaster County Orphans' Court at
                           No(s): 2175 of 2017

 IN RE: B.M.D., A MINOR              :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
J-S28011-18


                                               :
    APPEAL OF: B.K.D., FATHER                  :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 165 MDA 2018

                  Appeal from the Decree December 21, 2017
     In the Court of Common Pleas of Lancaster County Orphans' Court at
                             No(s): 2176 of 2017


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                               FILED AUGUST 07, 2018

       Appellant, B.K.D. (Father), appeals from the decree entered on

December 21, 2017, involuntarily terminating his parental rights to four

children, K.B.D. (a male, born in January, 2009), U.S.D. (a male, born in

September, 2010), N.M.D. (a female, born in June 2012), and B.M.D. (a male,

born in November, 2014) (collectively, the Children). Upon review of the

record and recent, applicable case law, we are constrained to vacate the

decrees without prejudice and remand this case for further proceedings

consistent with this memorandum. The trial court summarized the facts of

this case as follows:

       [The Lancaster County Children and Youth Services Agency (the
       Agency)] received a report, on November 4, 2016, that the
       [C]hildren were living with their paternal grandparents and the
       grandparents, having serious medical issues, could no longer care
       for the [C]hildren.    At the time of the report, Father was
       incarcerated and Mother’s[1] whereabouts were unknown. The
       [A]gency offered assistance to allow the [C]hildren to remain in
____________________________________________


1Mother, J.L.P., does not appeal the termination of her parental rights and is
not a party to the instant appeal.

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J-S28011-18


       their home, but the grandparents requested the [C]hildren be
       removed. The [A]gency has a prior history with this family. In
       2014, there were reports of suspected drug abuse by both
       parents. […I]n 2016, Father was at the hospital with one of the
       children and was unable to give the child’s name or date of birth.

Trial Court Opinion, 1/26/2018, at *2 (unpaginated).

       Procedurally, the case progressed as follows:

       [O]n November 9, 2016, [the Agency] petitioned for and received
       physical custody of [the Children]. A [s]helter [c]are [h]earing
       was held on November 11, 2016 and [Mother] was not present.
       [Father] was present and waived the [s]helter [c]are [h]earing
       without admitting any of the allegations set forth in the Agency’s
       petition for custody. An [a]djudication and [d]isposition hearing
       was held on December 15, 2016, finding the [C]hildren
       dependent.[2] The [trial c]ourt approved Child Permanency Plans
       (“CPP”) containing objectives for both parents. On October 2,
       2017, the Agency petitioned to terminate the parental rights of
       Father and Mother to the [C]hildren pursuant to 23 Pa.C.S.A.
       § 2511(a)(1), (2), (5), and (8). A hearing on the termination
       petition was held on December 21, 2017, resulting in the [trial
       c]ourt issuing a decree involuntarily terminating Mother’s and
       Father’s rights to the [C]hildren.

Id. at *1. This timely appeal resulted.3




____________________________________________


2  Upon review of the record, the trial court appointed Cynthia L. Garman,
Esquire as guardian ad litem (GAL) for the Children. Attorney Garman was
present at the termination hearing and examined witnesses on behalf of the
Children. At the end of the termination proceeding, Attorney Garman opined
that it was in the Children’s best interests for the trial court to involuntarily
terminate the parental rights of Mother and Father. N.T., 12/21/2017, at 94.

3 On January 19, 2018, Father filed a notice of appeal and corresponding
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i). The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a)
on January 26, 2017.

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       Recently, and applicable herein, a panel of our Court issued a published

opinion which addressed a child’s statutory right to the appointment of legal

counsel. See In re K.J.H., 180 A.3d 411 (Pa. Super. 2018). Therein, we

examined 23 Pa.C.S.A. § 2313 and our Supreme Court’s divided decision in

In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) and explained that

children have a clear statutory right to mandatory appointment of counsel to

represent their legal interests in termination of parental rights proceedings.

Because the failure to appoint legal counsel has been deemed a structural

error, this Court, based upon the minor status of affected children, must raise

the failure to appoint statutorily-required legal counsel for children sua sponte.

The L.B.M. Court, however, could not agree as to whether an attorney

appointed to represent a child as a guardian ad litem could also represent a

child’s legal interests.4       Justice Wecht, joined by Justices Donohue and

Doughtery, believed “the trial court is required to appoint a separate,

independent attorney to represent a child's legal interests even when the

child's GAL, who is appointed to represent the child's best interests, is an

attorney. Justice Wecht would hold that the interests are distinct and require

separate representation.” In re D.L.B., 166 A.3d 322, 329 (Pa. Super. 2017).




____________________________________________


4 “[A] child's legal interests [] are synonymous with the child's preferred
outcome[.]” In re Adoption of L.B.M., 161 A.3d at 174.



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        Chief Justice Saylor authored a concurrence in L.B.M., joined by Justice

Todd,    suggesting    that,   “a   child's    legal   and    best    interests   may   be

indistinguishable, including, most notably, cases involving children who are

too young to express their wishes.” L.B.M., 161 A.3d 172, 184 (Pa. 2017)

(Saylor,    concurring).   Chief     Justice    Saylor       opined   that,   “[i]n   such

circumstances, mandating the appointment of separate counsel seems

superfluous and potentially wasteful.” Id. (footnote omitted). Instead, Chief

Justice Saylor suggested, “the propriety of permitting the same individual to

serve in both capacities[, as GAL and legal interest counsel,] should be

determined on a case-by-case basis, subject to the familiar and well-settled

conflict of interest analysis.” Id. (Saylor, concurring).

        Justice Baer issued a dissent in L.B.M., opining that “it would be a better

practice for courts in every contested termination proceeding to place an order

on the record formalizing the appointment of counsel to highlight for all parties

the responsibility for the representation of the child's legal interests, while

simultaneously permitting that attorney to serve as the child's GAL so long as

there is no conflict of interest between the child's legal and best interests.”

Id. at 188 (Baer, dissenting).

        Justice Mundy also dissented in L.B.M., opining that she believed the

appointment of a GAL, who is an attorney, satisfies the statutory mandate to

appoint legal counsel to represent children in contested termination

proceedings. Id. at 191 (Mundy, dissenting).


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       Thus, “while the [concurring and dissenting opinions in L.B.M.] agreed

that the appointment of counsel for [a] child is required in all [termination of

parental rights] cases [], they did not join that part of Justice Wecht's opinion

which sought to hold that the [GAL] may never serve as counsel for the child.”

In re D.L.B., 166 A.3d at 329. “Rather, such separate representation would

be required only if the child's best interests and legal interests were somehow

in conflict.” Id.

       Here, Attorney Garman advised the trial court that termination of

Father’s parental rights was in the Children’s best interests. Nevertheless,

despite Attorney Garman’s assurances to the trial court that she could serve

the Children as both GAL and legal counsel,5 she never advanced the

Children’s legal interests or provided evidence of the Children’s preferred

outcomes in the termination proceedings. Moreover, Attorney Garman did not

indicate she was unable to ascertain the Children’s preferences because of age

or level of development. As such, the record does not substantiate that the

Children’s statutory right to legal counsel was observed.        Hence, we are

constrained to vacate the decrees without prejudice and remand for the

appointment of new counsel to represent the Children’s legal interests. See

In re Adoption of T.M.L.M., 2018 WL 1771194, at *4 (Pa. Super. 2018)

(remanding for the appointment of separate legal-interests counsel when the



____________________________________________


5   See N.T., 12/21/2017, at 78.

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guardian ad litem indicated that she could act as both guardian ad litem and

legal-interests counsel for the child, but failed to consult with the child or

otherwise state the child’s preferred outcome on the record).      After reviewing

the   prior   proceedings    and   appropriately   consulting   with   each   child,

legal-interests counsel shall notify the trial court whether the result of the

prior proceedings was consistent with each child’s legal interest or whether

counsel believes a new hearing is necessary to advocate separate preferred

outcomes or placements for the Children. Id.       The trial court shall conduct a

new hearing only if it serves the “substantive purpose” of providing the

Children with an opportunity to advance their legal interests through new

counsel. Id. If, however, a new hearing is deemed unwarranted, the trial

court may re-enter the original decrees.

      Decrees vacated without prejudice. Case remanded for the appointment

of legal counsel and additional proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2018




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