J-S57016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.M.R. A/K/A           :   IN THE SUPERIOR COURT OF
    A.R., A MINOR                              :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: D.R., FATHER                    :
                                               :
                                               :
                                               :
                                               :     No. 1367 EDA 2018


                      Appeal from the Decree April 10, 2018
              in the Court of Common Pleas of Philadelphia County
                 Family Court at Nos.: CP-51-AP-0000010-2018
                            FID: 51-FN-002198-2015


BEFORE:      PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PLATT, J.:                            FILED NOVEMBER 09, 2018

       D.R. (“Father”) appeals from the decree of the Court of Common Pleas

of Philadelphia County, entered April 10, 2018, which granted the petition of

the Department of Human Services (“DHS”) and involuntarily terminated his

parental rights to his daughter, A.M.R. (“Child”) (born in May 2008), pursuant

the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), and (b).1              We are

constrained to vacate and remand for further proceedings consistent with this

memorandum.

       We take the following facts and procedural history from the trial court’s

opinion, which in turn is supported by the record. (See Trial Court Opinion,

____________________________________________


1The trial court confirmed the consent to termination of the parental rights of
Child’s natural mother, E.C. (“Mother”), in an order entered that same day.
Mother is not a party to the instant appeal and has not filed a separate appeal.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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6/06/18, at 1-4; see also N.T. Hearing, 4/10/18, at 1-50). In October 2015,

DHS received a report alleging that Child had been the victim of sexual abuse

by Mother’s ex-paramour and that Mother had stopped sending Child to school

for fear that Child would disclose the abuse to staff.       The report was

determined to be valid, and Child was removed from Mother’s home.

Following a shelter care hearing, DHS was granted temporary legal custody of

Child. At that time, Father was not involved in the care of Child. Child was

placed in foster care and DHS subsequently filed a dependency petition. Child

was adjudicated dependent on October 26, 2015, with full legal custody

granted to DHS. Father did not attend the dependency hearing.

     The court conducted permanency review hearings between November

2015 and January 2018.      Father met with Community Umbrella Agency

(“CUA”) representatives, where permanency goals were identified for him at

a single case plan (“SCP”) objective meeting. These goals were to cooperate

with supervised visitation; attend Achieving Reunification Center (“ARC”) for

parenting classes; and obtain appropriate housing. In early 2016, Child, who

had been previously placed with paternal grandmother, was removed from the

home after alleging that grandmother hit her.     Child was placed in a pre-

adoptive foster home, where she has resided since. As of September 2017,

Father was not compliant with his SCP objectives. He visited Child only twice,

in July 2017, had not attended ARC, and had not obtained appropriate

housing.




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      On January 8, 2018, DHS filed a petition seeking to involuntarily

terminate Father’s parental rights and change Child’s permanency goal to

adoption. On April 10, 2018, the court held a hearing on the termination and

goal change petitions. Child was represented by Melanie Silverstein, Esquire,

as legal counsel and Kathleen Taylor, Esquire, as guardian ad litem. (See

N.T. Hearing, at 6).        Neither Attorney Silverstein nor Attorney Taylor

presented witnesses or participated in cross examination. (See id. at 31, 41-

42). Neither attorney made argument regarding Child’s best interests or legal

interests, and they joined DHS’s argument.      (See id. at 43).   Father was

represented by counsel and testified on his own behalf. (See id. at 5, 37-41).

Cynthia Marcano, the CUA case manager, testified for DHS, and opined that it

was in Child’s best interests for Father’s parental rights to be terminated and

her goal changed to adoption. (See id. at 30-31; see also id. at 19-36).

Following the conclusion of DHS’s case in chief, the court granted the petition

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b), and entered a decree

terminating Father’s parental rights.

      Father timely filed a notice of appeal and a concise statement of errors

complained of on appeal from the termination docket.            See Pa.R.A.P.

1925(a)(2)(i).   The trial court entered its opinion on June 6, 2018.       See

Pa.R.A.P. 1925(a)(2)(ii).

      Father now raises the following issues for our review.

      1. Whether the trial court erred in terminating [Father’s] parental
      rights under 23 Pa.C.S.A. [§] 2511(a)(1), the evidence having
      been insufficient to establish [Father] had evidenced a settled

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      purpose of relinquishing his parental claim, or having refused or
      failed to perform parental duties[?]

      2. Whether the evidence was sufficient to establish that [Father]
      had refused or failed to perform parental duties, caused Child to
      be without essential parental care, that conditions having led to
      placement had continued to exist, or finally that any of the above
      could not have been remedied[?]

      3. Whether the evidence was sufficient to establish that
      termination of parental rights would best serve the needs and
      welfare of the minor Child, under 23 Pa.C.S.[A. §] 2511(b)[?]

(Father’s Brief, at 5) (unnecessary capitalization omitted).

      Prior to addressing the merits of Father’s appeal, we must first address

sua sponte the representation provided by Child’s legal counsel. See In re:

K.J.H., 180 A.3d 411, 413 (Pa. Super. 2018).          Our Supreme Court, in In re

Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality), held that 23

Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent the legal

interests   of   any    child   involved   in   contested    involuntary   termination

proceedings. The Court noted that legal interests are synonymous with the

child’s preferred outcome, but the child’s best interests are determined by the

court. See In re L.B.M., supra at 183. Since L.B.M., this Court has clarified

the requirements counsel must meet in order to provide adequate

representation in termination matters. See In re Adoption of T.M.L.M., 184

A.3d 585, 587-91 (Pa. Super. 2018).

      Here, the trial court appointed legal counsel for Child, Attorney

Silverstein.     Attorney Silverstein was present at the hearing, but did not

present     evidence,    cross-examine      witnesses,      or   argue   Child’s   legal

preferences.      (See N.T. Hearing, 4/10/18, at 31, 41-43). The record is silent

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as to whether Attorney Silverstein ascertained Child’s legal preferences during

the pendency of the appeal. While Child’s guardian ad litem has filed a brief

before this Court arguing it is in Child’s best interests to terminate Father’s

rights, Attorney Silverstein has not filed a brief or joined the brief of another

party.     See In re T.M.L.M., supra at 590 (noting that counsel’s duty to

represent a child does not stop at the conclusion of the termination of parental

rights hearing). There is nothing in the record to indicate that Child, who was

nine years and ten months old at the time of the hearing, could not

communicate her preferred outcome. See id. (explaining that six year old

child likely has feelings one way or another about parent and his permanency).

Further, there is nothing in the record that clearly indicates Child’s

preferences, besides the circumstantial evidence that Father has been largely

uninvolved in her life and that she appears happy in her pre-adoptive foster

home.

         Accordingly, we are constrained to vacate the decree in this matter, and

remand for further proceedings. See id. at 587-91 (vacating and remanding

for further proceedings where attorney admitted she did not interview six-

year-old child to ascertain child’s preferences); see also In re Adoption of

D.M.C., --- A.3d ---, 2018 WL 3341686 at **5-6 (Pa. Super. filed July 9,

2018) (vacating and remanding where record was unclear in what capacity

attorney had been appointed to represent children and whether attorney had

ascertained children’s legal interests prior to hearing); In re Adoption of

M.D.Q., --- A.3d ---, 2018 WL 3322744 at **3-5 (Pa. Super. filed July 6,

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2018) (vacating and remanding where record does not indicate that counsel

attempted to ascertain children’s preferences and record does not reflect

children’s legal interests).

       Accordingly, we remand to the trial court to re-appoint legal counsel and

a guardian ad litem for Child, and direct counsel to “effective[ly] represent[]”

Child by “ascertain[ing] [Child’s] position and advocating in a manner

designed to effectuate that position.” In re T.M.L.M., supra at 590. Once

counsel identifies Child’s preferred outcome, counsel shall notify the trial court

whether termination of Father’s parental rights is consistent with Child’s legal

interests. If Child’s preferred outcome is consistent with the result of the prior

termination proceedings, the trial court shall re-enter its April 10, 2018

termination decree as to Father. If the preferred outcome is in conflict with

the prior proceeding, the trial court shall conduct a new termination/goal

change hearing as to Father only, to provide Child’s legal counsel an

opportunity to advocate on behalf of Child’s legal interests. See id. at 591

(ordering that trial court shall conduct a new hearing only if it serves the

substantive purpose of providing child with opportunity to advance his legal

interests through new counsel).

       Decree vacated as to Father without prejudice to permit the trial court

to re-enter the original decree if a new termination hearing is not required.

Case    remanded    for   proceedings    consistent   with   this   memorandum.

Jurisdiction relinquished.

       Judge Panella concurs in the result.

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     Judge Strassburger files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/18




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