J-S30044-18

                             2018 PA Super 200

IN RE: ADOPTION OF D.M.C. AND A.L.C. :       IN THE SUPERIOR COURT OF
                                     :             PENNSYLVANIA
                                     :
                                     :
                                     :
APPEAL OF: M.M.C., NATURAL MOTHER    :        No. 224 WDA 2018

               Appeal from the Order Entered January 3, 2018
              in the Court of Common Pleas of Cambria County
                Orphans’ Court at No(s): 2017-791 & 792-IVT

BEFORE:    BENDER, P.J.E, STABILE, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                            FILED JULY 09, 2018

     M.M.C. (Mother) appeals from the January 3, 2018 order granting the

petitions of Cambria County Children and Youth Services (CYS) to terminate

involuntarily Mother’s parental rights to her minor children, D.M.C., born

December 2004, and A.L.C., born April 2013 (Children, collectively). 1 After

review, we vacate the order as to Mother without prejudice and remand for

proceedings consistent with this opinion.

     The relevant procedural history and facts may be summarized as

follows. In April 2016, CYS opened services2 for Children due to allegations

of abuse and neglect. N.T., 12/7/2017, at 14-16; see also CYS Trial Exhibit


1 The orphans’ court also involuntarily terminated the parental rights of
Children’s respective fathers. Neither father has filed his own appeal or
participated in this appeal.
2 Mother and Children’s fathers had been previously involved with CYS
concerning not only Children here, but other children as well. Order,
1/3/2018, at ¶ 3; N.T., 12/7/2017, at 8, 12, 14; see also CYS Exhibit 5, at
3-4.

*Retired Senior Judge assigned to the Superior Court.
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7. Shortly thereafter, Mother was evicted from her apartment for failure to

pay rent and utilities.   After shelter and dependency hearings on June 15,

2016, the juvenile court adjudicated Children dependent and ordered

Children removed from Mother’s home based on findings of inadequate

shelter, a bedbug infestation, financial instability, transiency, and allegations

of sexual abuse of D.M.C. by Mother.3       CYS Trial Exhibit 7.   The goal was

reunification.

      Throughout the proceedings before the juvenile court, Mother was

ordered, inter alia, to receive a psychological evaluation, successfully

complete parenting skills classes, fully cooperate with Independent Family

Services Home Management (IFS) until successfully discharged, eradicate

bedbugs from her home and belongings, maintain a clean, safe, and

adequately furnished home for at least six months, pay rent, utilities, and

other bills on time, ensure all utilities are in proper working order at all

times, complete sexual offender treatment, and attend outpatient mental

health counseling. Id.

      By August 2017, Children had been in foster care for 15 of the prior 22

months.    Id.   Despite extensive assistance from numerous agencies and

3 Mother pled guilty on October 26, 2017 to indecent exposure, 18 Pa.C.S.
§ 3127(a), relating to Mother forcing D.M.C. to take pictures of her naked in
sexual positions. N.T., 12/7/2017, at 16, 23, 25-26; see also CYS Exhibit 8.
This resulted in an indicated report of child abuse with ChildLine pursuant to
23 Pa.C.S. Chapter 63 (Child Protective Services). The remaining charges
were nol prossed. Id. She was ordered to complete sexual offender
treatment, but failed to do so. N.T., 12/7/2017, at 20-21, 109.

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providers,      Mother    never   made       more   than    minimal     progress   toward

alleviating the circumstances which necessitated original placement and had

achieved only minimal compliance with the permanency plan.                         Order,

1/3/2018, at 3-5; CYS Trial Exhibits 5, 7.             Although initially cooperative,

during    the    last    months   of   assistance,    Mother     became     hostile   and

uncooperative.      N.T., 12/7/2017, at 20, 87.            While she briefly worked at

McDonald’s for about one month, at the August 2017 permanency review

hearing she remained unemployed and homeless. Id. at 21. Further, she

had     been    discharged    from     IFS    and    mental    health    counseling   for

noncompliance, and had not completed her required sexual offender

treatment. Id. at 20-21, 109. Based on the foregoing, the juvenile court

changed Children’s placement goal to adoption.

        On September 7, 2017, CYS filed petitions to terminate involuntarily

Mother’s parental rights to Children pursuant to 23 Pa.C.S. §§ 2511(a)(1),

(2), (5), and (8) of the Adoption Act.4 A hearing was held on December 7,

2017.     Five witnesses testified, including Mother, a CYS caseworker, the

psychologist who conducted a psychological evaluation of Mother, and two

providers of family and/or in-home services.                On January 3, 2018, the


4 CYS also petitioned the orphans’ court to terminate involuntarily parental
rights of Children’s fathers. See n.1, supra. Further, while the orphans’
court January 3, 2018 order indicates that CYS filed petitions to terminate
involuntarily parental rights on September 17, 2017 (Order, 1/3/2018, at 1),
the certified record shows the petitions were filed on September 7, 2017.


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orphans’ court terminated Mother’s parental rights to Children. This appeal

followed.5

      Before we reach the issues presented by Mother on appeal, we address

sua sponte whether Attorney Gregory J. Neugebauer’s representation of

Children satisfies the requirement of 23 Pa.C.S. § 2313(a).        See In re

K.J.H., 180 A.3d 411 (Pa. Super. 2018) (holding that this Court must raise

sua sponte child’s right to counsel).      Children have a statutory right to

counsel in contested involuntary termination proceedings:

      The court shall appoint counsel to represent the child in an
      involuntary termination proceeding when the proceeding is being
      contested by one or both 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).

      Our Supreme Court held in In re Adoption of L.B.M., 161 A.3d 172,

180 (Pa. 2017), that the orphans’ court must appoint counsel who is

directed by the child to represent the legal interests of a child involved in a

contested involuntary termination proceeding pursuant to this subsection.

As our Supreme Court held, a child’s legal interests are synonymous with the



5 Both Mother and the orphans’ court complied with Pa.R.A.P. 1925. The
orphans’ court adopted its January 3, 2018 order and opinion as its Rule
1925(a) opinion.


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child’s preferred outcome, while a child’s best interests must be determined

by the court. L.B.M., 161 A.3d at 174.

      This Court has interpreted L.B.M. as permitting a child’s guardian ad

litem to serve also as his or her legal counsel, so long as there is no conflict

between a child’s best and legal interests. In re D.L.B., 166 A.3d 322, 329

(Pa. Super. 2017).

      Our review of the certified record does not reveal what role Children’s

attorney served. The orphans’ court appointed Devon A. Malloy, Esquire as

attorney for Children in the termination proceedings.6      See Order Setting

Hearing, 10/9/2017, at 1.      The order refers to Attorney Malloy as “court-

appointed counsel.” Attorney Malloy later withdrew and the orphans’ court

appointed Attorney Neugebauer. See Motion for Leave of Court to Withdraw

as Court-Appointed Counsel and Petition to Appoint New Counsel and Order,

11/13/2017, at 1.       Once again, this order refers only to representing

Children,7 but does not indicate whether this representation is for Children’s

legal or best interests, or both.


6 The dependency orders entered into the record at the termination hearing
show Paul Eckenrode, Esquire and Timothy Sloan, Esquire served as
Children’s guardian ad litem in the dependency matters before the juvenile
court. See CYS Trial Exhibit 7.

7 The order states “Gregory Neugebauer, Esquire is appointed to represent
the alleged incapacitated person children in the above captioned matter
moving forward.” See Motion for Leave of Court to Withdraw as Court-
Appointed Counsel and Petition to Appoint New Counsel and Order,
11/13/2017, at 1 (verbatim). The strike-through and handwritten word
Footnote Continued Next Page

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      Compounding this uncertainty is Attorney Neugebauer’s inconsistent

use of his title in filings with the orphans’ court and this Court.        In

petitioning the orphans’ court for approval of fees, he referred to himself as

“Counsel for the Children,” “Attorney for the Children,” and “Court-Appointed

Attorney.” See Petition for the Approval of Fees, 1/8/2018, at cover page,

1-2 (unnumbered). However, in filing his brief before this Court, he titled

the brief and signed as guardian ad litem for Children.         See Brief of

Guardian Ad Litem for Appellees, D.M.C. and A.L.C., 4/26/2018, at cover

page and 7.

      Further, Mother’s attorney, Richard M. Corcoran, Esquire, in filing her

notice of appeal with the orphans’ court, indicated on the certificate of

service Attorney Neugebauer’s role as guardian ad litem for Children. See

Notice of Appeal, 2/5/2018, at 7 (unnumbered). But when Mother filed her

brief before this Court, the certificate of service indicated Attorney

Neugebauer as “Attorney for Children.” See Brief of Appellant, 4/5/2018, at

8.

      Moreover, nowhere in the transcript of the December 7, 2017

termination hearing does the orphans’ court note for the record whether its

appointment of Attorney Neugebauer is as counsel representing Children’s

legal interests or as guardian ad litem representing their best interests. Our
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Footnote Continued from Previous Page
“children” suggest a boilerplate form was used without due consideration of
Attorney Neugebauer’s role.

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review of the hearing transcript shows the following regarding Attorney

Neugebauer’s role. He cross-examined two of the five witnesses, but did not

introduce any witnesses or evidence.       During the hearing, he referred to

himself as “counselor for the children” or prefaced his statements with “on

behalf of the children.” N.T. 12/7/2017, at 81, 112, 118.

     At the end of the hearing, the orphans’ court permitted Attorney

Neugebauer to make a statement:

           On behalf of the children, respectfully, first, I’d like to tell
     the [c]ourt I did have the opportunity to speak with [D.M.C.]. I
     spoke with him on the phone last night, actually.[8] Very
     energetic young man even on the phone. For 12 years old, he
     communicated pretty well with me.

           He did indicate that he loves his mom. I asked him if he
     understood what today was about. He indicated that he did.
     And I believe he did. I think his ultimate opinion, based on my
     limited conversation with him, is that he’s ready for
     permanency. And, unfortunately, [Mother] and neither of the
     fathers can offer him that type of permanency.

            They’ve been in placement a long time, Your Honor. I
     know [Mother] says housing is well on its way. I think we’re a
     little past that point already. I did a rough calculation. She
     doesn’t have any employment and no prospect. Hopefully she
     gets Social Security. Where it stands now, if her fiancé, who has
     no financial obligation to these kids and on whom she’s going to

8 Ascertaining a child’s position about important and sensitive matters such
as his relationship with his mother is no easy task. Although it is not clear
from Attorney Neugebauer’s statement, it appears from the record that his
only interaction with D.M.C. was this one limited conversation over the
telephone. It further appears from the record that Attorney Neugebauer had
no interaction whatsoever with A.L.C. Not only must counsel consult directly
with his or her clients, but we strongly encourage counsel for children to do
all he or she can to cultivate a relationship with his or her clients and not
rely on such brief and impersonal interactions.

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     rely, if he makes $11 an hour at McDonald’s, which I think is
     being generous, a rough estimate, that’s about $23,000 a year
     before taxes or anything else. I don’t think $23,000 a year in
     total income with somebody not obligated to the kids is going to
     get the kids what they need. I just don’t see that happening.

           I do believe there’s a bond between [Children] and
     [Mother]. However, I don’t think severing that bond would be
     negative to their interests. I think it’s actually at this point in
     their best interests, so that they get the permanency.

           The other thing I’d say is that I hope that CYS would
     encourage whoever the permanent adoptive parents are, maybe
     they’d promote PACA [post-adoption contact agreement]. I
     think in this instance, I think that’s something that would be
     good for the boys, particularly, [D.M.C.]. I think it would be
     good for the boys. They know [Mother]. They love [Mother].
     While [Mother] may not be the best for them long-term to care
     for their daily needs, I think that relationship should be
     maintained even if it’s a minimum. Thank you.

Id. at 118-19 (emphasis added).

     Attorney Neugebauer indicated in his brief to this Court that D.M.C.

wants to be adopted but wants continued contact with Mother.            Brief of

Guardian Ad Litem for Appellees, D.M.C. and A.L.C., 4/26/2018, at 7. While

the record shows Attorney Neugebauer briefly conferred with D.M.C., then

just shy of 13 years old, as to his preferred outcome for permanency, we

cannot discern from the record whether D.M.C. fully understood during the

limited telephone call with Attorney Neugebauer that his adoption would

mean,    absent   a   post-adoption   contact   agreement    (PACA),   that    his

relationship with Mother would be legally and permanently severed.            Even

though   Attorney     Neugebauer   advocated    for   PACA   and   a   continued



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relationship with Mother, it is by no means guaranteed.         It is unclear

whether D.M.C. would continue to prefer adoption if his adoptive family did

not support PACA or informally arranged post-adoption visitation.

      Caseworker Barb Brzana testified, in response to questioning from

Attorney Neugebauer, that she was in favor of Children’s continued contact

with Mother post-adoption and had begun to discuss it with Mother. N.T.,

12/7/2017, at 44. Brzana testified that D.M.C. hoped his potential adoptive

family would allow contact with Mother, but A.L.C. did not express any

interest, possibly due to his age (then about four-and-one-half years). Id.

at 44-45. At the time of the hearing, Children had not yet been placed with

a potential adoptive resource, but they had been visiting with a foster family

who could provide permanency.       Id. at 30.    Children were moving the

following day to live with this family. Id. Therefore, at that time, there was

no way of knowing whether the potential adoptive family would support

PACA or even an informally arranged post-adoption contract, and if not,

whether D.M.C.’s preferred outcome of permanency would change. See In

re Adoption of G.L.L., 124 A.3d 344, 348 (Pa. Super. 2015) (noting that

PACA is a purely voluntary agreement requiring the consent of the adoptive

parents).   Thus, based upon the facts of this particular case, there is a

potential conflict between the position advanced by Attorney Neugebauer

and the position expressed by D.M.C.




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     Regarding A.L.C., we are unable to locate any place in the record

where Attorney Neugebauer set forth A.L.C.’s preferred outcome.9          We

likewise do not find any evidence that Attorney Neugebauer met with or

interviewed A.L.C., nor did Attorney Neugebauer indicate that he was unable

to ascertain A.L.C.’s preferred outcome due to his age, development, or

other reason.   Rather, Attorney Neugebauer advocated for the orphans’

court to grant CYS’s petitions because he believes termination is in

Children’s best interests. N.T., 12/7/2018, at 118-19.

     In In re Adoption of T.M.L.M., __ A.3d. __, 2018 WL 1771194 at *4

(Pa. Super. Apr. 13, 2018), we held that remand was required when a nearly

six-year-old child’s preference was unclear and the child’s counsel had

neglected to interview the child to determine whether the child’s best and

legal interests aligned. As we observed:



9 A.L.C.’s position at the time of the hearing is not readily discernible from
the record. Caseworker Brzana expressed her opinion at the hearing that
A.L.C. may have been too young to express his preferred outcome. N.T.,
12/7/2017, at 31, 44. Indications of what A.L.C.’s position might be are as
follows: (1) A.L.C. enjoys visits with Mother, id. at 31, 85-86; (2) A.L.C.
enjoys spending time with his foster family, id. at 31; (3) A.L.C. used to
throw temper tantrums when visits with Mother ended, but that behavior
stopped as visits continued, id. at 93-94; see also CYS Trial Exhibit 15; (4)
A.L.C. “knows he can’t go home” with Mother, N.T., 12/7/2017, at 31; see
also CYS Trial Exhibit 11; (5) during supervised visits, A.L.C. runs to give
Mother a hug, CYS Trial Exhibit 15; (6) A.L.C. “appeared happy to see”
Mother at supervised visits, N.T., 12/7/2017, at 92; (7) A.L.C. sometimes
plays by himself during Mother’s supervised visits, but also enjoys playing
with Mother, id. at 32.



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      We recognize that attorneys may encounter unique challenges
      when representing children that are different from the challenges
      they may encounter when representing adults, particularly when
      the representation concerns such sensitive subject matter.
      Nevertheless, counsel representing children must represent their
      clients with zeal and professionalism. Children have no say in
      appointment of counsel and deserve to have the benefit of
      effective representation, particularly when a matter as important
      as their future relationship with a biological parent is at stake.
      Not only do children not have a say in the appointment of
      counsel, due to their minority, most children are not in a position
      to assess whether counsel has represented their interests
      effectively.

                                      ***

      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.

T.M.L.M., 2018 WL 1771194 at *4 (internal citation and quotation marks

omitted).

      At the time of the hearing, D.M.C. was a few weeks shy of his

thirteenth birthday and A.L.C. was about four and one-half years old. While

Attorney Neugebauer did have a limited conversation over the telephone

with D.M.C., is it unclear what D.M.C.’s preferred outcome is absent PACA.

Further, and significantly, we do not find any indication in the record that

Attorney Neugebauer ever attempted to ascertain A.L.C.’s position.           While

A.L.C. may not have been old enough to actively participate in Attorney

Neugebauer’s representation of him,10 and it is possible A.L.C. was too


10Rather than this Court making assumptions about a child’s capabilities, it
would be far better for the trial court in the first instance to consider this
Footnote Continued Next Page

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young to clearly express his position, A.L.C. likely had feelings about

permanency.      Attorney Neugebauer should have attempted to ascertain

those feelings to determine whether A.L.C. had a preferred outcome and was

capable of directing Attorney Neugebauer’s representation at least to some

extent.11 See id.

      For the foregoing reasons, we conclude that we are unable to

determine from the record whether Children received the benefit of their

statutorily-required right to client-directed counsel serving their legal

interests. Nothing in the record indicates definitively that the orphans’ court

appointed Attorney Neugebauer as such legal counsel. Moreover, nothing in

the record indicates definitively that Attorney Neugebauer advocated for

Children’s legal interests and followed the direction of Children.

      We recognize that Children have been in foster care for two years at

this point, and would benefit from achieving permanency. As was the case

in T.M.L.M., 2018 WL 1771194 at *4, we likewise here do not wish to

prolong the uncertainty of Children’s future, but we are constrained to



___________________
Footnote Continued from Previous Page
issue prospectively and analyze each child individually. We note that a
legal-interest attorney, separate from a best-interest attorney, need not be
appointed for a child who is unable to articulate a position to legal counsel
because, in that situation, there is no conflict between the child’s legal and
best interests. See D.L.B., 166 A.3d at 329.
11 We note that Pa.R.P.C. 1.14 addresses representation of clients with
diminished capacity.

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vacate the order terminating Mother’s parental rights and remand for further

proceedings.


      On remand, we direct the orphans’ court to appoint client-directed

legal-interests counsel for the Children forthwith. It is incumbent upon such

counsel to attempt to ascertain Children’s preferred outcome as to Mother by

interviewing Children directly, and to follow Children’s direction to the extent

possible and advocate in a manner that comports with Children’s legal

interests.   Legal-interests counsel should discern from D.M.C. whether he

continues to prefer adoption if his adoptive family does not support

continued contact with Mother.     If A.L.C. is indeed too young to express

clearly his position as to Mother or direct counsel’s representation to any

extent, counsel shall notify the orphans’ court. Such legal-interests counsel

may also serve as guardian ad litem only if a conflict-of-interest analysis by

the orphans’ court reveals commonality between Children’s best and legal

interests, and this should be noted on the record. See L.B.M., 161 A.3d at

183-93 (a majority of our Supreme Court concluding counsel may serve in

both a best- and legal-interests capacity for child so long as there is no

conflict between those interests); see also D.L.B., 166 A.3d at 329

(interpreting L.B.M. and finding “such separate representation would be

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

in conflict”).



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      Once Children’s preferred outcomes as to Mother are identified,

Children’s counsel shall notify the orphans’ court whether termination of

Mother’s parental rights is consistent with Children’s legal interests.     If

Children’s preferred outcomes as to Mother are consistent with the result of

the prior termination proceeding, the orphans’ court shall reenter its

January 3, 2018 order as to Mother. If Children’s preferred outcomes as to

Mother are in conflict with the prior termination proceeding, the orphans’

court shall conduct a new termination hearing as to Mother to provide

Children’s counsel an opportunity to advocate on behalf of Children’s legal

interests. See T.M.L.M., 2018 WL 1771194 at *4 (finding that the orphans’

court shall conduct a new hearing if it serves the “substantive purpose” of

providing child with an opportunity to advance his legal interests through his

new counsel).     We observe that Children may have differing preferred

outcomes as to Mother, in which case Children’s legal counsel shall inform

the orphans’ court, and the court shall appoint separate legal-interests

counsel for each child and conduct further proceedings consistent with this

opinion.


      Order vacated as to Mother without prejudice to permit the orphans’

court to reenter the original order if a new termination hearing is not

required.   Case remanded for proceedings consistent with this opinion.

Jurisdiction relinquished.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/2018




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