J-S31001-16 & J-S31002-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: ADOPTION OF: L.B.M., A           :   IN THE SUPERIOR COURT OF
MINOR,                                  :           PENNSYLVANIA
                                        :
                      Appellee          :
                                        :
                                        :
APPEAL OF: J.P., MOTHER                 :    No. 1834 MDA 2015

            Appeal from the Order Entered September 25, 2015
             in the Court of Common Pleas of Franklin County
                  Orphans’ Court at No(s): 42-Adopt-2014

IN RE: ADOPTION OF: A.D.M., A           :   IN THE SUPERIOR COURT OF
MINOR,                                  :           PENNSYLVANIA
                                        :
                      Appellee          :
                                        :
                                        :
APPEAL OF: J.P., MOTHER                 :    No. 1835 MDA 2015

            Appeal from the Order Entered September 25, 2015
             in the Court of Common Pleas of Franklin County
                  Orphans’ Court at No(s): 41-Adopt-2014

IN THE INTEREST OF: L.B.M., A           :   IN THE SUPERIOR COURT OF
MINOR,                                  :           PENNSYLVANIA
                                        :
                      Appellee          :
                                        :
                                        :
APPEAL OF: J.P.                         :    No. 1836 MDA 2015

            Appeal from the Order Entered September 25, 2015
             in the Court of Common Pleas of Franklin County
            Orphans’ Court at No(s): CP-28-DP-0000050-2013




*Retired Senior Judge assigned to the Superior Court.
J-S31001-16 & J-S31002-16


IN THE INTEREST OF: A.D.M., A            :   IN THE SUPERIOR COURT OF
MINOR,                                   :           PENNSYLVANIA
                                         :
                      Appellee           :
                                         :
                                         :
APPEAL OF: J.P.                          :   No. 1837 MDA 2015

            Appeal from the Order Entered September 25, 2015
             in the Court of Common Pleas of Franklin County
            Orphans’ Court at No(s): CP-28-DP-0000051-2013


BEFORE:    SHOGAN, OTT, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

                                                  FILED MAY 31, 2016

     I believe that the orphan’s court erred in denying Mother’s request for

appointment of legal counsel for the boys. Accordingly, I would vacate the

court’s order and remand for a new hearing with the appointment of counsel.

     This is a close case on the merits. The orphan’s court acknowledged

that it had previously denied the Agency’s termination petition on the basis

that Mother had remedied the conditions leading to the boys’ placement and

on the strength of the family bond. Orphan’s Court Opinion, 12/7/2015, at 9.

Mother was days away from being reunited with her children before the

conduct that prompted the GAL to file the instant petition was discovered.

Id. at 9-11. Moreover, the boys are 9 and 5. The older child, A.D.M., has

stated a clear preference to live with Mother. Orphan’s Court Opinion,

12/7/2015, at 9. This preference is best expressed to the court by separate




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appointed counsel tasked with advocating on behalf of the child, as required

by 23 Pa.C.S.§ 2313(a).

      The pertinent statutory provision provides as follows:

      (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 parents.

23 Pa.C.S. § 2313(a) (emphasis added). “Implicit in this appointment of

counsel is a recognition that the interests of the child may be very different

than or diverge from the interests of the other parties to the proceedings.”

In re Adoption of J.L., 769 A.2d 1182, 1185 (Pa. Super. 2001).

      In reviewing the statute, the orphan’s court concluded, and the

Majority agrees, that denial of Mother’s motions to appoint legal counsel to

represent L.B.M. and A.D.M. at the TPR hearing was proper because the

guardian ad litem (GAL) appointed to represent the boys during the

dependency proceedings was also an attorney. Orphan’s Court Opinion,

12/7/2015, at 22.    In reaching this conclusion, the court relied on this

Court’s decision in In re K.M., 53 A.3d 781, 787 (Pa. Super. 2012), which

held, inter alia, that the orphan’s court did not err in denying appellant’s

request to appoint counsel for the children at issue where the court

appointed GAL was a licensed attorney.




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       The minor child in K.M. was three years old at the time of the

termination hearing and had been in placement since his birth. K.M., 53

A.3d at 784.    Because a GAL had been previously appointed, the panel

concluded that appointment of additional counsel was superfluous. Id. at

787.

       I am cognizant that section 6311 of the Juvenile Act mandates that

courts appoint a GAL to children in dependency proceedings to “represent

the legal interests and the best interests of the child.” 42 Pa.C.S. § 6311.

The statute requires the GAL be an attorney and expressly notes that “a

difference between the child's wishes … and the recommendations [made by

the GAL relating to the appropriateness and safety of the child's placement

and services necessary to address the child's needs and safety] shall not be

considered a conflict of interest for the GAL. Id. However, a plain reading of

section 2313(a) suggests that the legislature intended to differentiate

between legal counsel and GAL in TPR proceedings.

       Here, particularly with respect to A.D.M., the difference between the

child’s interests and the best interest of the child is staggering, and it is

readily apparent that a GAL appointed to represent the boys’ interests in the

dependency proceedings cannot advocate effectively on the boys’ behalf with

respect to issues raised surrounding the TPR and adoption without creating a

conflict. Such was not the case in K.M. where the child’s age necessarily led

to a commonality of legal and best interests.



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     Accordingly, I respectfully dissent.




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