J-S30045-18

                                  2018 PA Super 199

  IN RE: ADOPTION OF: M.D.Q.                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
  APPEAL OF: A.M.-Q., BIOLOGICAL               :
  MOTHER                                       :   No. 242 WDA 2018

               Appeal from the Order Entered January 16, 2018
     in the Court of Common Pleas of Clearfield County Orphans’ Court at
                         No(s): O.C. No. 3412-2017

  IN RE: ADOPTION OF: M.C.Q.                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
  APPEAL OF: A.M-Q., BIOLOGICAL                :
  MOTHER                                       :   No. 243 WDA 2018

                   Appeal from the Order January 16, 2018
     in the Court of Common Pleas of Clearfield County Orphans’ Court at
                             No(s): 3412-2017

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

OPINION BY STRASSBURGER, J.:                              FILED JULY 06, 2018

       In these consolidated appeals, A.M.-Q. (Mother) appeals from the order

entered January 16, 2018, granting the petition filed by C.Q. (Father) and

A.Q. (Stepmother) (collectively, Petitioners), and terminating her parental

rights involuntarily to her minor children, M.C.Q., born in June 2009, and

M.D.Q., born in April 2011 (collectively, Children). After review, we vacate


____________________________________________


* Retired Senior Judge assigned to the Superior Court.
J-S30045-18



the order without prejudice and remand for further proceedings consistent

with this opinion.

      Mother and Father were once married.       N.T., 11/3/2017, at 28-29.

Following their separation and divorce, Father exercised primary physical

custody of Children, while Mother exercised partial physical custody. Id. at

21-22. The parties shared legal custody of Children. Id. at 21. Mother last

saw the Children during a visit in September 2016. Id. at 5-6, 8, 21, 33.

Mother was incarcerated later that month for reasons not specified in the

record. Id. at 5, 8-9, 24. She was released to a halfway house in April 2017,

but absconded in May 2017. Id. at 24, 34-37. Mother had no contact with

Children while incarcerated or following her release. Id. at 5-6, 11-12, 14.

      Father began dating Stepmother in approximately 2014, and they

married in 2016. Id. at 3-4, 11. Petitioners reside together with Children,

two of Stepmother’s children from a previous relationship, and with their own

biological child. Id. at 4, 9, 12-13. On May 1, 2017, after seven months of

no contact from Mother, Petitioners filed petitions to terminate her parental

rights involuntarily.

      The orphans’ court conducted a termination hearing on November 3,

2017. During the hearing, Petitioners and Mother appeared, represented by

counsel. The court also appointed Courtney L. Kubista, Esquire, to represent




                                    -2-
J-S30045-18



Children.1 At the conclusion of the hearing, the court directed the parties to

submit letter briefs arguing their respective positions. Thereafter, on January

16, 2018, the court entered the order complained of on appeal, in which it

terminated Mother’s parental rights to Children involuntarily. Mother timely

filed notices of appeal on February 14, 2018, along with concise statements

of errors complained of on appeal.

       Before addressing the merits of Mother’s appeal, we must consider sua

sponte whether Children’s counsel provided adequate representation of their

legal interests during this proceeding.

       Appointment of counsel representing the child is mandatory, and
       failure to do so is legal error. In re Adoption of G.K.T., 75 A.3d
       521, 526 (Pa. Super. 2013) (citing In re E.F.H., 751 A.2d 1186,
       1189–90 (Pa. Super. 2000)). See also In re Adoption of
       N.A.G., [471 A.2d 871 (Pa. Super. 1984)] (holding 23 Pa.C.S.
       § 2313(a) creates a statutory right for a child to have counsel
       appointed who actively advances his or her needs and welfare and
       owes loyalty exclusively to him or her). 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. In re K.J.H., [180 A.3d 411 (Pa.
       Super. 2018)].

In re Adoption of T.M.L.M., ___ A.3d ____, 2018 WL 1771194, at *2 (Pa.

Super. 2018).




____________________________________________


1 The order appointing Attorney Kubista specified that she would serve as
“Attorney for the Children.” Thus, this is not a case where Children were
represented by a guardian ad litem tasked with representing their non-
conflicting legal and best interests. See In Re D.L.B., 166 A.3d 322, 329
(Pa. Super. 2017).

                                           -3-
J-S30045-18


      The Adoption Act provides that children have the right to representation

by counsel in all contested involuntary termination proceedings.       The Act

provides as follows, in relevant part.


      (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 23 Pa.C.S. § 2313(a) refers to an attorney

representing the child’s legal interests who is directed by the child. In re

Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017). As our Supreme Court

has emphasized, a child’s legal interests are distinct from his or her best

interests. Id. at 174. A child’s legal interests are synonymous with his or her

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

trial court. Id.

      This Court clarified the requirements that counsel must meet in order to

provide adequate representation of a child’s legal interests in T.M.L.M., supra.

In that case, the child was just under six years old at the time of the hearings

to terminate his mother’s parental rights. T.M.L.M., 2018 WL 1771194, at

*4. However, the attorney appointed to represent the child did not attempt

to interview him and did not set forth his preferred outcome on the record.



                                     -4-
J-S30045-18


Id. at *3-4. The child’s attorney did not advocate for his legal interests during

the hearings, and instead focused solely on his best interests. Id. Moreover,

she did not file a brief in this Court, nor did she join a brief filed by another

party. Id. at *4.

      This Court concluded that the child had been deprived of his statutory

right to counsel. We reasoned as follows:

               At the time of the hearings, Child was just shy of six years
      old. While Child may not have been old enough to participate
      actively in [the attorney’s] representation of him, it is not unlikely
      that Child has feelings one way or another about his mother and
      his permanency. 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. It may be that Child’s preferred outcome
      in this case is synonymous with his best interests. It may be that
      Child wants no contact with Mother. Child may be unable to
      articulate a clear position or have mixed feelings about the matter.
      Furthermore, termination of Mother’s rights may still be
      appropriate even if Child prefers a different outcome. However,
      ... it is clear that where a court appoints an attorney ostensibly as
      counsel, but the attorney never attempts to ascertain the client’s
      position directly and advocates solely for the child’s best interests,
      the child has been deprived impermissibly of his statutory right to
      counsel serving his legal interests.

Id. at *4 (citation omitted).

      In this case, Attorney Kubista represented Children during the

termination hearing on November 3, 2017. Children’s counsel participated in

the hearing by cross-examining witnesses.          However, counsel made no

mention of Children’s preferred outcomes on the record, and presented no

argument or statement on their behalf.




                                      -5-
J-S30045-18



      Following the hearing, the orphans’ court directed the parties to submit

letter briefs arguing their respective positions. Counsel’s brief is not contained

in the certified record. Apparently, though, counsel stated in her brief that

she interviewed Children, and summarized the contents of their conversations

for the court. The court described counsel’s letter brief as follows.

      In her brief, [c]ounsel for [] Children stated that she spoke with
      [] Children to discuss their positions on the termination. It is clear
      from [c]ounsel’s summary of the conversations that [] Children
      both see their Stepmother as fulfilling the motherly role in their
      lives. [] Children did not seem as concerned with discussing their
      Mother, whom they acknowledged they had not seen in some
      time. It appears to th[e c]ourt that [] Children’s needs are being
      sufficiently met by Father and Stepmother, and that termination
      of Mother’s rights would have no great impact on [] Children at
      this time or in the future, as they seem to share no emotional
      bond. Alternatively, allowing Mother to continue to enter and exit
      [] Children’s lives on her whim is likely to confuse and
      detrimentally impact [] Children’s emotional needs. . . .

Orphans’ Court Opinion, 1/16/2018, at 4.

      Based upon the orphans’ court’s summary, we are unable to ascertain

whether counsel represented Children’s legal interests. While counsel may

have interviewed Children and spoken to them about Mother, it does not

appear that she asked, or attempted to ask, what Children’s preferred

outcomes were. It may be that Children were not able or willing to state a

preferred outcome, but there is no indication of that in the court’s description

either.

      Counsel also filed a brief in this Court supporting the termination of

Mother’s parental rights, but counsel’s brief does not provide any further



                                      -6-
J-S30045-18


clarification of Children’s legal interests. In her brief, Attorney Kubista makes

no mention of any preferred outcomes that Children may have. Counsel states

as follows, in relevant part.

      I have interviewed [C]hildren.         After reviewing this case
      thoroughly, I believe that due to Mother’s lack of contact, failure
      to file any Petitions with the [orphans’ c]ourt to obtain contact
      with [C]hildren and failure to perform any parental duties, the
      [orphans’ c]ourt properly terminated the rights of Mother which
      was in the best interests of [C]hildren.

                                      ***

            I questioned [C]hildren in regard to the relationship with
      their Mother. It was clear that [C]hildren have no relationship
      with Mother. [C]hildren stated that it has been awhile since they
      had contact with their Mother. When confronted with questions
      as to their everyday care, the only people [C]hildren included in
      the conversations were their Father and Step-Mother. It was
      evident that they had a great relationship with their Step-Mother
      and they were grateful that Step-Mother had taken the role of a
      parent in their Mother’s absence.

                                      ***

      Based upon my interviews with [C]hildren and the testimony
      presented at the hearing, the [orphans’ c]ourt weighed the
      testimony and evidence and properly determined that the
      termination was warranted in this matter in regard to the best
      interests of [C]hildren.

Counsel’s Brief at 4-5, 13-15.     Again, based on counsel’s statements, it

appears that counsel did not ask Children what outcomes they each preferred,

and instead speculated what outcome Children wanted.

      Finally, we cannot determine Children’s legal interests from any other

sources in the certified record. To the extent the record does shed light on

Children’s legal interests, it suggests that a conflict may have existed between

                                      -7-
J-S30045-18


counsel’s support of the termination petition and M.D.Q.’s preferred outcome.

During the termination hearing, Stepmother testified that her relationship with

M.D.Q. has deteriorated since M.D.Q. saw Mother at a recent court

proceeding, and that M.D.Q. has made statements “[t]hat I’m not her real

mom now and stuff like that.” N.T., 11/3/2017, at 15, 19.

       Based on the foregoing, we have no basis to conclude that Children were

provided with counsel who represented their legal interests and took direction

from Children to the extent possible due to their ages. At the time of the

termination hearing, M.C.Q. was just under eight and a half years old, while

M.D.Q. was six and a half years old. Children were old enough to provide at

least some input as to their preferred outcomes in this case.2         However,

neither the court’s description of counsel’s letter brief, nor counsel’s brief on

____________________________________________


2  We recognize that ascertaining a child’s position is a difficult task. It often
entails undergoing a delicate conversation that needs to be undertaken with
sensitivity and skill, and differs from an interview that an attorney would
conduct of an adult. Nevertheless, our legislature has tasked legal-interests
counsel with this job. See L.B.M., 161 A.3d at 180 (holding, in a section
joined by five Justices, that “when a child's relationship with his or her birth
family could be severed permanently and against the wishes of the parents,
the legislature made the policy judgment, as is evident from the plain,
unambiguous language of the statute, that a lawyer who represents the child’s
legal interests, and who is directed by the child, is a necessity”). Accordingly,
it is incumbent upon legal-interests counsel to do all that counsel can to create
a relationship of trust between counsel and client, and then explain,
commensurate with a child’s level of development, the nature of the legal
proceedings, followed by specific questions to ascertain the child’s desired
outcome and the direction the child wants counsel to take. We observe that
Pa.R.P.C. 1.14 provides some guidance for representation of clients with
diminished capacity.



                                           -8-
J-S30045-18


appeal indicates that counsel attempted to ascertain these preferences

directly.   Counsel’s statements in her brief suggest that her focus was on

advocating for what she believed Children wanted rather than following

Children’s direction and advocating for the outcome they preferred. Moreover,

what little indication exists in the record addressing Children’s legal interests

suggests that there may have been a conflict between counsel’s stated

position and M.D.Q.’s preferred outcome.

      Because of these deficiencies, we must vacate the order terminating

Mother’s parental rights involuntarily, and remand for counsel to conduct an

additional interview of Children to discern their legal interests directly. Once

Attorney Kubista has done so, she must notify the orphans’ court. If Children’s

express preferred outcomes are consistent with the result of the prior

proceeding, or if Children are unable or unwilling to articulate a clear preferred

outcome, the court may reenter its January 16, 2018 order. If the Children’s

preferred outcomes are inconsistent with the result of the prior proceeding,

the court must conduct a new termination hearing, with counsel actively

advocating for their legal interests. See T.M.L.M., 2018 WL 1771194 at *4

(providing that the orphans’ court shall conduct a new hearing if it serves the




                                      -9-
J-S30045-18


substantive purpose of providing the child with an opportunity to advance his

legal interests through legal-interests counsel).3

       Order vacated without prejudice to permit the orphans’ court to reenter

the original order if a new hearing is not held. Case remanded for further

proceedings consistent with this opinion. Jurisdiction relinquished.




____________________________________________


3 We are cognizant that in T.M.L.M., this Court remanded the case with the
direction that new legal counsel be appointed. In the instant case, it appears
counsel attempted to comply with L.B.M., but either did not understand the
precise nature of her obligation, or she did understand but failed to make clear
on the record and in her brief what Children’s legal interests are. Unlike in
T.M.L.M, counsel did not abandon Children, and therefore, we see no need at
this time to instruct the orphans’ court to appoint new counsel on remand.
See T.M.L.M., 2018 WL 1771194 at *4 (finding that counsel “freely admitted
that she did not even attempt to interview” the child, “directly admitted that
her ‘only concern’ was” child’s best interest and failed to file a brief or “indicate
to this Court that she would not be filing a brief and did not attend oral
argument.”).

       In the interest of continuity of Children’s representation, we remand this
case so that counsel may discern Children’s legal interests. Counsel must
advocate for Children’s legal interests regardless of whether she believes
termination is in Children’s best interests. See L.B.M., 161 A.3d at 174, n.8
(“‘Legal interests’ denotes that an attorney is to express the child’s wishes to
the court regardless of whether the attorney agrees with the child’s
recommendation. ‘Best interests’ denotes that a guardian ad litem is to
express what the guardian ad litem believes is best for the child’s care,
protection, safety, and wholesome physical and mental development
regardless of whether the child agrees.”) (citing Pa.R.J.C.P. 1154 cmt). If it
appears to the orphans’ court that counsel is unable or unwilling to undertake
this obligation, new counsel should be appointed. Moreover, we observe that
Children may have conflicting preferred outcomes, in which case counsel
should inform the court, and the court must appoint separate counsel for each
child.

                                          - 10 -
J-S30045-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2018




                          - 11 -
