J-S39007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: RELINQUISHMENT OF A.C., A           :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: A.H.                            :
                                               :
                                               :
                                               :
                                               :   No. 128 MDA 2018

               Appeal from the Order Entered December 20, 2017
              In the Court of Common Pleas of Lackawanna County
                        Orphans' Court at No: A-73-2017


BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.:                             FILED AUGUST 21, 2018

       A.H. (“Father”) appeals from the order entered on December 20, 2017,

in the Court of Common Pleas of Lackawanna County, involuntarily

terminating his parental rights to his son, A.C. (“Child”), born in August of

2012.1 Upon review, we vacate and remand for proceedings consistent with

this memorandum.

       In its opinion pursuant to Pa.R.A.P. 1925(a), the orphans’ court set forth

the factual and procedural history of this case, which the certified record

supports. As such, we adopt it herein. See Trial Court Opinion, 1/23/18, at

1-6.




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1The court also involuntarily terminated the parental rights of T.C. (“Mother”)
by order entered on December 20, 2017. Mother did not appeal, and she is
not a party in this appeal.
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      By way of background, on September 20, 2015, the court removed Child

from Mother due to her severe mental health issues, and placed him in the

care of the Lackawanna County Office of Children and Family Services

(“Agency”). Id. at 2 (citation to record omitted). Child was placed in his

current foster care home, a pre-adoptive resource, on August 5, 2016. Id.

With respect to Father, the Agency was unable to locate him until January 3,

2017, at which time the Agency learned that he was incarcerated. Id. (citation

to record and footnote omitted). The court found:

      While some written correspondence between the caseworker and
      Father ensued, copies of which have been made part of the record,
      they never spoke directly as Father failed to respond to
      Caseworker Herie’s inquiries regarding the reason for his
      incarceration, his prison counselor’s name, which was necessary
      in order to contact him by phone, and any programs he completed
      while incarcerated. Nonetheless, the Agency learned that Father
      had been incarcerated in a facility in Jonesville, Virginia, but he
      was released therefrom on April 14, 2017 and transferred to
      Southern State Correctional in New Jersey. Father, apparently
      initially incarcerated in August 20144, will have served his
      maximum sentence on May 2, 2023, and he will not be eligible for
      parole until May 13, 2019.

      ____________________________________________________
      4 Father, however, indicates that he has “been in since 2012,” and

      that minor child “was four months old” at the time.

Id. at 3 (citations to record omitted).

      On October 20, 2017, the Agency filed a petition for the involuntary

termination of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),

(2), (5), (8), and (b). A hearing on the petition commenced on November 28,

2017, and continued on December 15, 2017. Child, who was then five years


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old, was represented by his guardian ad litem (“GAL”) from the underlying

dependency matter, Kevin O’Hara, Esquire.         At the conclusion of the

testimonial evidence,2 Attorney O’Hara recommended to the orphans’ court

that Father’s parental rights be terminated involuntarily based on Child never

having contact with Father, and, therefore, Child not having a bond with him.

N.T., 12/15/17, at 50.

       By order dated December 19, 2017, and entered on December 20, 2017,

the orphans’ court involuntarily terminated Father’s parental rights. Father

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

of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The orphans’ court

filed its Rule 1925(a) opinion on January 23, 2018.

       Before addressing the merits of Father’s appeal, we must raise sua

sponte whether Child was denied legal counsel during the involuntary

termination proceeding pursuant to Section 2313(a) of the Adoption Act. See

In re Adoption of T.M.L.M., ___ A.3d ___, 2018 PA Super 87, *4 (Pa. Super.

April 13, 2018) (“This Court must raise the failure to appoint statutorily-

required counsel for children sua sponte, as children are unable to raise the

issue on their own behalf due to their minority.”) (citing In re K.J.H., 180

A.3d 411, 414 (Pa. Super. 2017) (Judge Olson dissenting)).



____________________________________________


2 The Agency presented the testimony of its caseworker, Lisa Herie. Father
testified on his own behalf.


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      It is undisputed that the appointment of counsel to represent a child in

a contested termination proceeding is mandatory pursuant to Section 2313(a)

of the Adoption Act, which 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 parent or parents.

23 Pa.C.S. § 2313(a). The term “counsel” in Section 2313(a) refers to an

attorney representing the child’s legal interests, which our Supreme Court

defined as the child’s preferred outcome of the termination proceedings, as

opposed to the child’s best interests, “which the trial court must determine.”

In re Adoption of L.B.M., 161 A.3d 172, 174 (Pa. 2017). It is relevant that

the Juvenile Act mandates a guardian ad litem’s (“GAL”) dual representation

of a child’s legal and best interests during the dependency proceedings. See

42 Pa.C.S. § 6311(a). The lead opinion in L.B.M. did not gain a majority of

the justices for the proposition that an attorney appointed as GAL during the

underlying dependency proceedings is prohibited from serving as Section

2313(a) counsel. In In re D.L.B., 166 A.3d 322 (Pa. Super. 2017), this Court

concluded that, based on the plurality decision in L.B.M., a GAL appointed

during the dependency proceedings may serve as legal counsel pursuant to

Section 2313(a), so long as the child’s legal and best interests are not in

conflict.

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      In this case, the orphans’ court did not enter an order appointing counsel

to represent Child in the contested termination of parental rights proceedings

pursuant to Section 2313(a). During the termination hearing, Attorney O’Hara

did not identify himself as either GAL or counsel for Child. Neither the orphans’

court nor the parties sought to clarify in what capacity Attorney O’Hara

represented Child during the hearing. Attorney O’Hara did not indicate Child’s

preferred outcome of the termination proceedings or identify a potential

conflict between his legal and best interests. Moreover, nothing in the record

indicates that the court appointed Attorney O’Hara as GAL after conducting a

conflict-of-interest analysis and determining that Child’s legal and best

interests are not in conflict.

      We are constrained to vacate the order without prejudice and remand

for the orphans’ court to appoint legal-interests counsel for Child pursuant to

Section 2313(a). The court may appoint Attorney O’Hara as legal-interests

counsel only if it makes an on-the-record determination that there is no

conflict between Child’s legal and best interests. See L.B.M., 161 A.3d at

183-193 (a majority of our Supreme Court concluding that counsel may serve

as a GAL and legal counsel so long as there is no conflict between those

interests); see also D.L.B., supra. If the court determines that there is no

conflict between Child’s interests, then it may re-enter the original order.

However, if the court determines that Child’s legal interest is different from

his best interest, then the court shall conduct a new termination hearing.


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      Order vacated without prejudice. Case remanded for the appointment

of legal-interests counsel for Child pursuant to Section 2313(a) and additional

proceedings consistent with this memorandum. Jurisdiction relinquished.

      Judge Musmanno joins this memorandum.

      Judge Murray concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/21/2018




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