J-S53003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Z. N. F., A MINOR          IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
APPEAL OF: H. F., MOTHER
                                                     No. 964 EDA 2017


             Appeal from the Order Entered February 24, 2017
           In the Court of Common Pleas of Philadelphia County
                           Family Court at No(s):
                         CP-51-DP-0002596-2014
                         CP-51-AP-0000146-2017


IN THE INTEREST OF: Z. E. A. F., A             IN THE SUPERIOR COURT OF
MINOR                                                PENNSYLVANIA

APPEAL OF: H. F., MOTHER
                                                     No. 974 EDA 2017


             Appeal from the Order Entered February 24, 2017
           In the Court of Common Pleas of Philadelphia County
                           Family Court at No(s):
                         CP-51-AP-0000147-2016
                         CP-51-DP-0002593-2014


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED MAY 09, 2018

      H.F. (Mother) appeals from the February 24, 2017 orders that granted

the petitions filed by the Philadelphia Department of Human Services (DHS)

to involuntarily terminate Mother’s parental rights to Z.N.F., born in July of
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2013, and Z.E.A.F., born in May of 2011, (Children) and to change the goal

for Children to adoption.1 We vacate and remand.

        In its opinion, the trial court set forth the factual and procedural

history of this case, as follows:

              The Children’s family became known to the Department of
        Human Services (“DHS”) on July 6, 2013 through a Child
        Protective Service (“CPS”) report alleging Mother tested positive
        for marijuana when Z.N.F. was born [i]n July [of] 2013. At the
        time, Father[2] did not reside with Mother and Child. In January
        2014[,] DHS learned that Mother had been evicted from her
        home. Thereafter, Mother found new housing but was evicted
        again in March 2014 and Mother and Child began residing at the
        People’s Emergency Center (“PEC”). While at PEC, Child’s finger
        was severed as a result of an accident while he was playing
        unattended.

              On January 22, 2015, the Honorable Jonathan Irvine
        adjudicated the Children dependent. On March 10, 2015[,] the
        Community Umbrella Agency (“CUA”) held a Single Case Plan
        (“SCP”) meeting. The SCP objectives established for Mother
        were (1) to produce negative drug screens; (2) to continue to
        meet with her therapist; (3) to remain in a shelter in order to
        qualify for Blue Print Housing; (4) to comply with the shelter
        rules; (5) to schedule and attend all of the Children’s medical
        appointments; (6) to comply with all … drug screens; and (7) to
        meet with her CUA Case Manager.

              At a permanency review hearing held on October 22, 2015,
        Mother and Father appeared before Master Alexis Ciccone who
        ordered that the Children remain committed.           Mother was
        referred to the Clinical Evaluation Unit (“CEU”) for an evaluation
        and three random drug screens. On January 20, 2016, CEU
____________________________________________


1Mother’s two appeals were consolidated sua sponte by order of this Court,
dated April 3, 2017.

2   Father is not a party to this appeal.



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      issued a Progress Report for Mother reporting that she did not
      complete a drug and alcohol assessment on October 22, 2015;
      that she failed to attend a re-scheduled appointment on
      November 3, 2015; and that she had no contact with CEU.

            A permanency review hearing was held on January 21,
      2016. Mother and Father appeared at this hearing. Mother was
      again referred to the CEU for an assessment and a drug screen.
      On March 21, 2016, the SCP objectives identified for Mother
      remained the same but included an additional term th[at] she
      attend all court hearings. On October 20, 2016, CEU completed
      a Progress Report indicating that Mother did not provide
      documentation of her current treatment status and she refused
      to provide a urine sample on July 21, 2016.

             On or about February 7, 2017, DHS filed the underlying
      Petition to Terminate Mother’s Parental Rights to the Children.
      On February 24, 2017, this [c]ourt ruled to terminate Mother’s
      parental rights pursuant to 23 Pa.C.S.[] § 2511(a) (1)[,] (2)[,]
      (5) and (8) and that the termination of the Mother's rights was
      in the best interest of the Children pursuant to 23 Pa.C.S.[] §
      2511(b). The [c]ourt ruled that the Children’s goal be changed
      to adoption. Thereafter, Mother filed a Notice of Appeal on
      March 22, 2017.

Trial Court Opinion (TCO), 4/27/17, at 2-4 (citations to the record omitted).

      Following its rendition of the facts and procedural history, quoted

above, the trial court discussed the testimony presented by the CUA

representative, who explained Mother’s failure to meet her SCP objectives

and to complete her random drug screens.        The CUA representative also

testified about Children’s living with a paternal aunt since 2015, who is

considered to be a pre-adoptive placement. The CUA representative further

indicated that a goal change to adoption was in Children’s best interest.

Based upon this testimony and the submission of documentary evidence, the

court concluded that Mother’s parental rights should be terminated, a


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decision that would be in Children’s best interest. Id. at 8. The court also

changed the goal for Children to adoption.

        On appeal, Mother raises the following issues for our review:

        A. Whether the trial court erred in involuntarily terminating the
        Mother’s parental rights where it was not supported by clear and
        convincing evidence when the Mother completed a substantial
        portion of her FSP/SCP goals?

        B. Whether the trial court erred in involuntarily terminating the
        Mother’s parental rights where … the bonding evaluation was
        incredible in that the Mother had consistently visited her Children
        and there was a bond between the Mother and Children and the
        termination of parental rights would have a negative effect on
        the developmental, physical and emotional needs of the
        Children?

Mother’s brief at 5 (unnecessary capitalization omitted).3

        Based upon her arguments relating to the above stated issues,

Mother’s brief contains a request that the termination of her parental rights

be reversed.      In the alternative, Mother asks that “this matter should be

remanded for appointment of a children’s attorney and a hearing should be

held on whether the children wish to be adopted at this time.”          Id. at 16

(citing In re: Adoption of L.B.M., 161 A.3d 172 (Pa. 2017)).

        We are aware that Athena Mary Dooley, Esq., has entered her

appearance in this Court and is identified as the attorney for Children.

Additionally, Attorney Dooley, who attended the February 24, 2017 hearing


____________________________________________


3   No issue has been raised relating to the goal change.



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before the trial court, is identified in the transcript of that hearing as a child

advocate. In fact, the record contains a copy of an order, dated November

4, 2014, appointing counsel as a child advocate, yet no name identifying an

attorney is stated in the order.       However, the record also contains a

dependency court pre-hearing conference report that identifies Attorney

Dooley as the child advocate.       Without more, we are unable to identify

whether Attorney Dooley is acting in the role of a guardian ad litem (GAL),

who is appointed to represent Children’s best interests, as an independent

attorney, who represents Children’s legal interests, or whether Attorney

Dooley is acting in both capacities simultaneously.

      In In re: D.L.B., 166 A.3d 322 (Pa. Super. 2017), with reliance on the

L.B.M. case, this Court stated that “23 Pa.C.S.[] § 2313(a) requires the trial

court to appoint counsel for a child in a termination of parental rights

(“TPR”) case, and that the failure to do so is structural and can never be

harmless.” Id. at 329. The D.L.B. case further states:

      As a point of information, Justice Wecht’s opinion in L.B.M.
      states that the trial court is required to appoint a separate,
      independent attorney to represent a child’s legal interests even
      when the child’s GAL, who is appointed to represent the child’s
      best interests, is an attorney. Justice Wecht would hold that the
      interests are distinct and require separate representation. While
      Justice Wecht, joined by Justices Donohue and Dougherty,
      sought to so hold, four members of the court, Chief Justice
      Saylor and Justices Baer, Todd, and Mundy disagreed in different
      concurring and dissenting opinions with that part of the lead
      opinion’s holding. Specifically, while the other justices agreed
      that the appointment of counsel for the child is required in all
      TPR cases and that the failure to do so by the trial court is a
      structural error, they did not join that part of Justice Wecht’s

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      opinion which sought to hold that the GAL may never serve as
      counsel for the child. Rather, such separate representation
      would be required only if the child’s best interests and legal
      interests were somehow in conflict.

Id.

      We are also aware of a very recent opinion filed by this Court, wherein

we recognized that “[t]his 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 Adoption of:

T.M.L.M., ___ A.3d ___, 2018 PA Super 87, *2 (filed April 13, 2018) (citing

In re K.J.H., ___ A.3d ___, 2018 PA Super 37 (filed February 20, 2018)).

In the T.M.L.M. case, this Court stated that,

      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 [the
      c]hild wants no contact with [the m]other. [The c]hild may be
      unable to articulate a clear position or have mixed feelings about
      the matter. Furthermore, termination of [the m]other’s rights
      may still be appropriate even if [the c]hild prefers a different
      outcome. However, pursuant to the Supreme Court’s opinion in
      Section I and II-A of L.B.M., 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. L.B.M., 161 A.3d at 174, 180.

T.M.L.M., at *4.      Accordingly, the termination order in T.M.L.M. was

vacated and the case was remanded for the appointment of counsel to

represent the child’s legal interests.




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      In contrast, the D.L.B. Court found the child’s best interests and legal

interests were not in conflict and were represented by the attorney

appointed as the child’s GAL.     Here, we are unable to discern what role

Attorney Dooley performed or even whether Children’s best interests and/or

legal interests were or were not in accord.       A question also arises with

regard to whether there is conflict between each child’s best and legal

interests.   Accordingly, we are compelled to vacate the termination/goal

change orders from which Mother appealed and remand this matter so that a

new hearing may be held to determine the answers to these factual

questions. Moreover, if a conflict between legal interests and best interests

is revealed and/or if a conflict exists between each child’s separate interests,

then the trial court is directed to appoint the necessary attorney(s) to

protect Children’s interests.   Depending upon the determination as to the

attorney issue, the court shall then ascertain whether a new termination

hearing must be held with the inclusion of proper representation of the

interests of Children.

Orders vacated.     Cases remanded for further proceedings.         Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/18




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