J.   A12044/19

NON-PRECEDENTIAL DECISION              - SEE    SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF:      L.Q., A MINOR      :     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

APPEAL OF: S.K., MOTHER                               No. 72 WDA 2019


              Appeal from the Order Dated December 10, 2018,
              in the Court of Common Pleas of Allegheny County
             Family Court Division at No. CP-02-DP-0002333-2014


BEFORE:     BENDER, P.J.E., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED AUGUST 05, 2019

        S.K. ("Mother") appeals from the December 10, 2018 order entered in

the Court of Common Pleas of Allegheny County, Family Court Division, that

denied the oral motion that Mother made at the December 4, 2018

permanency and goal change hearing' requesting that the trial court appoint

separate counsel to represent the legal interests of L.Q., male child, born in

December 2011 ("Child"). We affirm.

       The trial court set forth the following:

             The   family has an extensive history of court
             involvement and the case has been court active for
             several years. The case was successfully closed for a
             brief period but was re -opened in 2017. [C]hild was
             adjudicated dependent again on January 10, 2018.
             This court has conducted routine permanency
             hearings in this matter and has had the opportunity to
             observe [C]hild on a number of occasions. [Child]

" In its opinion, the trial court noted that December 4, 2018, was also the date
of the initial hearing on the petition for involuntary termination of Mother's
parental rights. (Trial court opinion, 2/19/19 at 1 n.1.)
J.   A12044/19

               suffers from mental health issues and has had
               substantial behavioral issues resulting in multiple
               foster home placements.[Footnote 2]

                     [Footnote 2] [Allegheny County Children,
                     Youth, and Families ("CYF")] Caseworker
                     Shayla Jones testified that [Child] had
                     been placed in five different foster homes
                     since the case re -opened.

               During the Permanency Hearing on December 4th,
               2018, the CYF Caseworker, Shayla Jones, testified
               that [C]hild reported that he wanted to return to
               Mother's care.       However, he displayed mixed
               emotions about his visits with Mother. Counsel for
               Mother requested that separate counsel be appointed
               for [C]hild based on a divergence of his legal and best
               interests. The court attempted to speak with [C]hild
               for the purpose of determining whether there was a
               conflict between his legal and best interests. The
               court did attempt to engage [Child] in conversation to
               determine if [C]hild was competent to direct his legal
               representation and if there was a conflict between his
               legal and best interests. When questioned by the
               court, [C]hild would not answer any questions,
               instead continuously repeated the word "no" and
               burying his face into Mother's chest.

Trial court opinion, 2/19/19 at 1-2.

        On December 10, 2018, the         trial court entered an order denying

Mother's oral motion to appoint separate legal counsel for Child based upon

its finding:

               that there is no divergence between [C]hild's legal and
               best interests and Mother's oral request that separate
               counsel for [C]hild be appointed is denied. Based
               upon the [c]ourt's observation of [C]hild, it finds
               [C]hild is unable to formulate an opinion based upon
               his age, emotional state and inability to articulate his
               wishes to the court.



                                        -2
J.   A12044/19

Order of court, 1/10/18.

        On January 9, 2010, Mother 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).             Subsequently,    the    trial    court    filed   its

Rule 1925(a)(2)(ii) opinion.

        Mother raises the following issue for our review:

              Can a trial court deny a childtheir right to unconflicted
              representation of their legal interest in a dependency
              proceeding by declaring the child lacks the capacity to
              direct his legal counsel?

Mother's brief at 6 (full capitalization omitted).

        Preliminarily, we note that in     In re J'K.M.,    191 A.3d 907 (Pa.Super.

2018), this court recently recognized that an order denying           a   parent's motion

for the appointment of     a    separate guardian ad /item ("GAL") to represent the

child's best interest in   a    dependency proceeding is an appealable order under

Pa.R.A.P. 313(b). We, therefore, have jurisdiction over this appeal.

              Review in dependency cases requires an appellate
              court to accept the findings of fact and credibility
              determinations of the trial court if they are supported
              by the record, but it does not require the appellate
              court to accept the lower court's inferences or
              conclusions of law. Accordingly, we review the trial
              court's decision under an abuse -of -discretion
              standard.

J'K.M., 191 A.3d at 910.

        Recently, this court explained that

              a   dependency court is required by statute to appoint
              a   GAL, who must be an attorney. 42 Pa.C.S.[A.]


                                           -3
J.   A12044/19

             § 6311(a). The GAL is authorized to represent both a
             child's legal and best interests. Id. Pursuant to
             Section 6311(b)(7), the GAL's duties in representing
             a     child's   best    interests    include     making
             recommendations to the court regarding a child's
             placement        needs.            However,        under
             Section 6311(b)(9), the GAL is to represent a child's
             legal interests by determining "to the fullest extent
             possible," a child's wishes, if those wishes are
             ascertainable. Factors that must be considered when
             ascertaining a child's wishes, or legal interests, are a
             child's age and mental and emotional condition.
             42 Pa.C.S.[A.] § 6311(b)(9).

            The difficulty arises when, as occurred in this case, the
            two interests conflict. We find In re Adoption of
            L.B.M., 639 Pa. 428, 161 A.3d 172 (Pa. 2017)
            instructive, despite that case involving the
            appointment of counsel in termination of parental
            rights cases under 23 Pa.C.S. § 2313. Justice Wecht,
            the author of the lead opinion in L.B.M., stated that
            23 Pa.C.S. § 2313(a) requires the trial court to
            appoint counsel for a child in a termination of parental
            rights case, and the failure to do so is a structural
            error and is not subject to harmless error analysis.
            L.B.M., 161 A.3d at 183. In part II -B of the lead
            opinion, Justice Wecht concluded that a trial court is
            required to appoint counsel 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 concluded that the interests are distinct
            and require separate representation. Four members of
            the Court, Chief Justice Saylor, and Justices Baer,
            Todd, and Mundy disagreed with Justice Wecht's strict
            application of Section 2313(a); rather, they opined, in
            concurring and dissenting opinions, that separate
            representation is required only if the child's best
            interests and legal interests conflicted. In other
            words, a child's GAL may serve as child's counsel
            when the GAL's dual role does not create a conflict of
            interest. L.B.M., 161 A.3d at 183-193. Thus, a conflict
            of interest analysis must be conducted to determine
            whether a child's legal interests diverge from the
            child's best interests. In re Adoption of T.M.L.M.,


                                      -4
J.   A12044/19

             184 A.3d 585, 2018 PA Super 87, at *4 (Pa. Super.
             2018) (remanding where a five-year old child's
             preference was equivocal and child's counsel had not
             interviewed the child to determine whether his best
             interests and legal interests conflicted).

             Furthermore, although Section 6311(b)(9) provides
             that a dependency GAL has no conflict of interest
             when the child's best interests and legal interests
             diverge, our Supreme Court suggested in such
             instances that the GAL should request appointment as
             legal counsel and the assignment of a separate GAL.
             L.B.M., 161 A.3d at 175 n.4 (citing Pa.R.J.C.P. 1154
             cmt.); see also In Interest of C.P., 2017 PA Super
             22, 155 A.3d 631, 634 n.2 (Pa. Super. 2017) ("We
             note that if a child's wishes conflict with the GAL's
             belief of the best interests of that child, the GAL has a
             conflict and the court may separate the representation
             by retaining the GAL to act solely as the child's
             attorney and appointing a new GAL. Pa.R.J.C.P. 1151
             cmt."). Importantly, the Supreme Court suspended
             Section 6311(b)(9) to the extent that it conflicts with
             Rule 1154. Pa.R.J.C.P. No. 1800(3). Thus, pursuant
             to L.B.M., C.P., Rule 1154 and its comment, and the
             specific suspension of Section 6311(b)(9), a
             divergence between the child's wishes under
             42 Pa.C.S.[A.] §       6311(b)(9), and the GAL's
             recommendations under 42 Pa.C.S. § 6311(b)(7),
             may be considered a conflict of interest for the GAL.

             It   well settled that "[c]ompetency is the rule and
                  is
             incompetency the exception." Rosche v. McCoy, 397
             Pa. 615, 156 A.2d 307, 309 (Pa. 1959). Moreover,
             competency is presumed where the child is more than
             fourteen years of age. Id. at 310.

J'K.M., 191 A.3d at 913-914.

        In J'K.M., the child was 16 years old and presumed competent. (Id. at

914.)    The child testified at the dependency proceeding that she wanted to

remain in her mother's care. (Id.) The child explained that she believed the



                                       -5
J.   A12044/19

system had failed her; that she was raped in foster care; that she did nothing

more than cry while she was in foster care; and that as                 a   result of her

placement in foster care, her grades suffered. (Id. at 914-915.) Despite the

child's presumed competence and her ability to articulate her preferred

outcome and the reasons for her preference, the GAL argued that the child

remain in foster care. (Id. at 915.) Mother then moved for the appointment

of   a   separate GAL.       The trial court denied mother's request.         This court

reversed and remanded for the appointment of              a   separate GAL, finding that

the trial court abused its discretion in concluding that the "divergent opinions"

of the child and the GAL did not constitute              a    conflict that required the

appointment of       a   separate GAL. (Id. at 916.)

         Unlike J'K.M., however, the trial court in this case denied Mother's

request for appointment of separate counsel to represent Child's legal interest

after it determined that no conflict existed between the Child's legal and best

interests because Child's wishes were not ascertainable.             Indeed, the record

reflects that the GAL informed the trial court that Child wanted to be returned

to Mother, but emphasized that Child is six years old and "does not understand

why he     is   out of [M]other's care." (Notes of testimony, 12/4/18 at 73.) The

GAL also stated her belief        that Child "is not competent enough to direct his

legal representation."        (Id.)   The trial court then attempted to question Child,

but Child        neither answered the trial court's questions nor stated his

preference.        (Id. at 77-78.) The trial court denied Mother's request for


                                             -6
J.   A12044/19

appointment of separate legal counsel because it found Child unable to

formulate an opinion as to his preferred outcome based on his age, his

emotional state, and his inability to articulate his wishes.     (Order of court,

1/10/18.) Under these circumstances, where       a   child's legal interest cannot

be determined due to age, emotional state, and          inability to articulate   a


preference, no conflict can exist between the child's legal and best interests.

Therefore, the trial court properly exercised its discretion in denying Mother's

request for the appointment of separate counsel to represent Child's legal

interest.

        Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Es     .


Prothonotary




Date: 8/5/2019




                                     _7
