J-A22038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: S.C.F., JR., A MINOR                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: S.F., SR. AND J.F.,             :
    PARENTS                                    :
                                               :
                                               :
                                               :
                                               :   No. 1217 EDA 2019

                   Appeal from the Order Entered April 2, 2019
    In the Court of Common Pleas of Pike County Civil Division at No(s): No.
                                   2-2018 OA


BEFORE: MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                         FILED OCTOBER 08, 2019

        S.F., Sr. (Father) and J.F (Mother) (collectively, Parents) appeal from

the order of the Court of Common Pleas of Pike County (trial court)

involuntarily terminating their parental rights to S.C.F., Jr. (Child). We vacate

and remand.

        Because of our disposition, we need not recite all of the facts adduced

at the involuntary termination of parental rights hearing (TPR). However, we

provide the following pertinent facts and procedural history from the trial

court’s April 2, 2019 order and our independent review of the certified record

to provide some context for the reader. Child was born in November 2012

and was six years old at the time of the subject proceeding. On August 20,


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*   Retired Senior Judge assigned to the Superior Court.
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2013, Mother executed a consensual legal guardianship agreement with C.F.

(Maternal Grandfather) and D.F. (Maternal Grandmother) (collectively,

Maternal Grandparents).     In a handwritten document dated September 9,

2013, Mother requested that Maternal Grandparents assume full custody of

Child. Father did not endorse or consent to any documents that gave custody

or guardianship to Maternal Grandparents.

      On the March 28, 2013 recommendation of a custody hearing officer,

the trial court entered an order granting primary physical custody to Maternal

Grandparents, shared legal custody to Parents and Maternal Grandparents,

and periods of supervised visitation for Parents as agreed upon by the parties.

On February 16, 2018, Maternal Grandparents filed a Petition for Involuntary

Termination of Parental Rights of Father and Mother to Child and a Petition for

Adoption of Child.

      On April 2, 2019, after a TPR hearing, the trial court entered an order

terminating the parental rights of Mother and Father, finding that the totality

of the evidence established that they evidenced a strong and settled purpose

of relinquishing their parental rights or failed or refused to perform their

parental duties. Mother and Father timely appealed. They and the trial court

complied with Rule 1925. See Pa.R.A.P. 1925.

      On appeal, Mother and Father argue that the trial court erred and

abused its discretion by failing to appoint counsel for Child pursuant to Section




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2313(a) of the Adoption Act1 and in involuntarily terminating their parental

rights.2

       We address the issue of the trial court’s failure to appoint counsel first.

Section 2313 of the Adoption Act provides, in pertinent part, that “[t]he 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.”    23 Pa.C.S. § 2313(a).             Based on this clear and unambiguous

language, our appellate courts have found that the appointment of counsel

representing the child is mandatory, and failure to do so is legal error. See

In re K.J.H., 180 A.3d 411, 413-14 (Pa. Super. 2018) (concluding 23

Pa.C.S.A. § 2313(a) mandated orphans’ court to appoint counsel for child in

contested    involuntary     termination        of   parental   rights   proceeding   and

committed an error of law by failing to do so); see also In re Adoption of

N.A.G., 471 A.2d 871, 874-75 (Pa. Super. 1984) (observing Section 2313(a)



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1 Mother and Father did not raise this issue with the trial court and, generally,
this would result in waiver. See Pa.R.A.P. 302(a). However, because the
statutory right found in Section 2313(a) belongs to Child and not Mother and
Father, they cannot waive it on his behalf. See In re T.S., 192 A.3d 1080,
1087 (Pa. 2018), cert. denied, 139 S.Ct. 1187 (2019).

2 “The standard of review in termination of parental rights cases requires
appellate courts to accept the findings of fact and credibility determinations of
the trial court if they are supported by the record.” Interest of M.V., 203
A.3d 1104, 1111 (Pa. Super. 2019) (citation omitted). “If the factual findings
are supported, appellate courts review to determine if the trial court made an
error of law or abused its discretion.” Id. (citation omitted).


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creates a statutory mandate that court appoint counsel for a child who owes

loyalty exclusively to him or her to actively advance his or her needs and

welfare).

      Here, it is undisputed that the trial court failed to appoint counsel for

Child. Therefore, it erred as a matter of law. While acknowledging that the

trial court erred, Grandparents suggest that the error was harmless under the

circumstances. (See Grandparents’ Brief, at 2). We are not legally persuaded

by this suggestion, however, because the failure to appoint counsel is a

structural error. As this court recently observed:

             A structural error is defined as one that affects the
      framework within which the trial proceeds, rather than simply an
      error in the trial process itself. Structural errors are not subject
      to harmless error analysis. Generally, denial of counsel is a
      structural error; although such error usually stems from
      deprivation of a constitutional right to counsel. Here, by contrast,
      the right to counsel is statutory. Nonetheless, we do not find that
      distinction to be determinative. The same concerns are evident
      regardless of the derivation of the right. Whether the right to
      counsel is conferred by constitution or statute, the right having
      been conferred must be protected.

In re Adoption of K.J.H., supra at 413 (brackets, internal citation, and

footnote omitted) (addressing failure to appoint counsel in termination of

parental rights proceeding sua sponte) (citing In re L.B.M., 161 A.3d 172,

183 (Pa. 2017) (Opinion announcing judgment of the Court with five Justices

joining this section) (holding that failure to appoint counsel for child in




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contested TPR proceeding is structural error not subject to harmless error

analysis)).3

       In spite of the foregoing, Grandparents argue that “[t]he Supreme Court

in In re T.S., [supra], stated that the lack of a guardian ad litem for the

subject minor child is non waivable but that the harmless error standard is to

be used.”       (Grandparents’ Brief, at 2).     This argument fails.    First,

Grandparents confuse the role of a guardian ad litem, who may or may not be

an attorney and whom a court appoints to represent a child’s best interests

with that of an attorney appointed pursuant to Section 2313(a), who

represents a child’s legal interests (preference).     Second, Grandparents

misinterpret In re T.S., which actually supports the theory that the failure to

appoint counsel is a structural error that is not subject to harmless error

analysis and merely reaffirms the principle that where a child is too young to

express a preference in a contested involuntary termination hearing, an

attorney-GAL can fulfill the role of Section 2313(a) counsel.

       Specifically, in In re T.S., the subject children were too young to

express a preference as to the involuntary termination proceeding’s outcome,

and, although they had an attorney-GAL to represent their best interests, the

court did not appoint a separate attorney to represent their legal interests


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3 Because we are remanding for a new proceeding, we need not reach the
issue of whether the trial court properly terminated the parental rights of
Mother and Father.


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pursuant to Section 2313(a). See In re T.S., supra at 1092. On appeal,

Mother argued that this was structural error and not subject to harmless error

analysis, requiring a remand for the appointment of counsel. See id.

       In reviewing this argument, the Pennsylvania Supreme Court observed

first that, “[t]o the extent Mother indicates that structural error is not subject

to harmless error analysis, by definition she is correct. However, structural

error cannot arise unless the trial court erred.” Id. It continued, “[w]e have

determined an attorney-GAL who is present and representing a child’s best

interests can properly fulfill the role of Section 2313(a) counsel where, as

here, the child at issue is too young to be able to express a preference as to

the outcome of the proceedings.” Id. Thus, the Court concluded that “the

trial court did not err in allowing [] the children’s guardian ad litem, to act as

the sole representative for [them].” Id.

       Therefore, contrary to Grandparents’ assertion, In re T.S. did not apply

the harmless error analysis to the facts before it or state that the harmless

error doctrine should be applied under any other circumstances.4 Additionally,

in this case, not only was Child six years old at the time of the hearing and

may have been able to express his preference, he did not have either a

guardian ad litem or an attorney pursuant to Section 2313(a). Therefore, the


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4 Although the dissent in In re T.S. characterizes the Majority’s holding as a
“harmless error approach,” the decision does not endorse a harmless error
analysis and merely reaffirms the exception detailed above. In re T.S., supra
at 1104 (Wecht, J., dissenting).

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trial court committed a structural error when it failed to appoint Section

2313(a) counsel for Child.

     Accordingly, we vacate the order of the trial court and remand for the

appointment of counsel to represent Child’s legal interests at a new

involuntary termination proceeding.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/19




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