J-S05014-18 & S05015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: M.B.-F., A         :   IN THE SUPERIOR COURT OF
 MINOR IN THE INTEREST OF: S.B.,        :        PENNSYLVANIA
 A MINOR IN THE INTEREST OF:            :
 E.C., A MINOR IN THE INTEREST          :
 OF: Z.C., A MINOR                      :
                                        :
                                        :
 APPEAL OF: G.C., NATURAL               :
 MOTHER                                 :   No. 1167 WDA 2017

                   Appeal from the Decree July 19, 2017
  In the Court of Common Pleas of Blair County Orphans' Court at No(s):
                               2014 AD 54,
                       2014 AD 54A, 2014 AD 54B,
                              2014 AD 54C


   IN RE: E.S.C., A MINOR           :       IN THE SUPERIOR COURT OF
                                    :            PENNSYLVANIA
                                    :
   APPEAL OF: K.C., NATURAL         :
   FATHER                           :
                                    :
                                    :
                                    :
                                    :       No. 1173 WDA 2017

                  Appeal from the Decree July 19, 2017
     In the Court of Common Pleas of Blair County Orphans' Court at
                          No(s): 2014 AD 54C


   IN RE: Z.M.C., A MINOR           :       IN THE SUPERIOR COURT OF
                                    :            PENNSYLVANIA
                                    :
   APPEAL OF: K.C., NATURAL         :
   FATHER                           :
                                    :
                                    :
                                    :
                                    :       No. 1174 WDA 2017
J-S05014-18 & S05015-18




                    Appeal from the Decree July 19, 2017
       In the Court of Common Pleas of Blair County Orphans' Court at
                          No(s): No. 2014 AD 54B

BEFORE:      OLSON, J., OTT, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                                FILED JUNE 08, 2018

       G.B.-C. (“Mother”) and K.C. (“Father”) appeal from the decrees entered

on July 19, 20171 that granted the petitions filed by Blair County Children,

Youth, and Families (“BCCYF” or the “Agency”) seeking to involuntarily

terminate their parental rights to their children, Z.C. (born in December of

2012) and E.C. (born in June of 2015). Additionally, Mother appeals from the

order that terminated her parental rights to her children, M.B.-F., (a male born

in January of 2010), and S.B. (a female born in September of 2011).2       Upon

review of the record and recent, applicable case law, we are constrained to

____________________________________________


* Retired Senior Judge specially assigned to the Superior Court.
1




1 The decrees in this matter were dated July 5, 2017, but the trial court clerk
did not provide notice pursuant to Pa.R.C.P. 236(b) until July 19, 2017. Our
appellate rules designate the date of entry of an order as “the day on which
the clerk makes the notation in the docket that notice of entry of the order
has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further,
our Supreme Court has held that “an order is not appealable until it is entered
on the docket with the required notation that appropriate notice has been
given.” Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999). We
have amended the caption accordingly.

2 The trial court also terminated the parental rights of J.N.F., the father of
M.B.-F. and S.B. J.N.F. is not a party to this appeal, nor did he file a separate
appeal from the termination of his parental rights. See Trial Court Opinion,
10/18/17, at 1 n.1.
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vacate the decrees without prejudice and remand this case for further

proceedings consistent with this memorandum.

      Relevant to the current appeal, we briefly summarize the facts and

procedural history of this case as follows. BCCYF has been involved with this

family since February 2011, when it first initiated dependency proceedings

against Mother and Father regarding M.B.-F. On March 23, 2017, BCCYF filed

petitions for termination of parental rights for all the children against Mother

and for E.C. and Z.C. against Father. The trial court conducted hearings on

June 5, 2017 and July 5, 2017 addressing the termination petitions, as well

as conducting a permanency review of the children’s dependency.           At the

beginning of the first hearing, the trial court entered an order appointing Mary

Ann Probst, Esquire as legal counsel for the children at the termination

proceedings, as well as guardian ad litem for the permanency review.

Attorney Probst told the trial court that she was able to represent all four

children in her capacity as both legal counsel and guardian ad litem.

      Recently, and applicable herein, a panel of our Court issued a published

opinion which addressed a child’s statutory right to the appointment of legal

counsel. See In re K.J.H., __ A.3d __ , 2018 WL 987499 (Pa. Super. 2018).

Therein, we examined 23 Pa.C.S.A. § 2313 and our Supreme Court’s divided

decision in In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) and explained

that children have a clear statutory right to mandatory appointment of counsel

to represent their legal interests in termination of parental rights proceedings.
                                       -   3-
J-S05014-18 & S05015-18


Because the failure to appoint legal counsel has been deemed a structural

error, this Court must raise the failure to appoint statutorily-required legal

counsel for children sua sponte,3 based upon their status as minors.

        The L.B.M. Court, however, could not agree as to whether an attorney

appointed to represent a child as a guardian ad litem could also represent a

child’s legal interests.4       Justice Wecht, joined by Justices Donohue and

Doughtery, believed “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.” In re D.L.B., 166 A.3d 322, 329 (Pa. Super. 2017).

        Chief Justice Saylor authored a concurrence in L.B.M., joined by Justice

Todd,    suggesting     that,   “a   child's       legal   and   best   interests   may   be

indistinguishable, including, most notably, cases involving children who are



____________________________________________


3 This author issued a dissent in K.J.H., opining that this Court lacks the
authority to raise the issue sua sponte, even if it were a structural error. See
In re K.J.H., at *3. I continue to express that view, but recognize that I am
bound by the majority’s decision in K.J.H. See State Farm Fire & Cas. Co.
v. Craley, 844 A.2d 573, 575 (Pa. Super. 2004) (“[W]e are bound by
decisions of other panels of this Court until an en banc panel of this Court, the
legislature, or the Supreme Court decides otherwise.”).

4 “[A] child's legal interests [] are synonymous with the child's preferred
outcome[.]” In re Adoption of L.B.M., 161 A.3d at 174.


                                               -   4-
J-S05014-18 & S05015-18


too young to express their wishes.” L.B.M., 161 A.3d 172, 184 (Pa. 2017)

(Saylor,   concurring).   Chief   Justice   Saylor   opined   that,   “[i]n   such

circumstances, mandating the appointment of separate counsel seems

superfluous and potentially wasteful.” Id. (footnote omitted). Instead, Chief

Justice Saylor suggested, “the propriety of permitting the same individual to

serve in both capacities[, as guardian ad litem and legal interest counsel,]

should be determined on a case-by-case basis, subject to the familiar and

well-settled conflict of interest analysis.” Id. (Saylor, concurring).

      Justice Baer issued a dissent in L.B.M., opining that “it would be a better

practice for courts in every contested termination proceeding to place an order

on the record formalizing the appointment of counsel to highlight for all parties

the responsibility for the representation of the child's legal interests, while

simultaneously permitting that attorney to serve as the child's GAL so long as

there is no conflict of interest between the child's legal and best interests.”

Id. at 188 (Baer, dissenting).

      Justice Mundy also dissented in L.B.M., opining that she believed the

appointment of a guardian ad litem, who is an attorney, satisfies the statutory

mandate to appoint legal counsel to represent children in contested

termination proceedings. Id. at 191 (Mundy, dissenting).

      Thus, “while the [concurring and dissenting opinions in L.B.M.] agreed

that the appointment of counsel for [a] child is required in all [termination of

parental rights] cases [], they did not join that part of Justice Wecht's opinion
                                       -    5-
J-S05014-18 & S05015-18


which sought to hold that the [guardian ad litem] may never serve as counsel

for the child.”      In re D.L.B., 166 A.3d at 329.     “Rather, such separate

representation would be required only if the child's best interests and legal

interests were somehow in conflict.” Id.

       Here, upon review of the record, despite Attorney Probst’s assurances

to the trial court that she could serve the children as both guardian ad litem

and legal counsel, she never advanced the children’s legal interests or

provided evidence of the children’s preferred outcomes in the termination

proceedings. Moreover, Attorney Probst did not indicate she was unable to

ascertain the children’s preferences because of age or level of development.

As such, the children were deprived of their statutory right to counsel. Hence,

we are constrained to vacate the decrees without prejudice and remand for

the appointment of new counsel to represent the children’s legal interests.

See In re Adoption of T.M.L.M., 2018 WL 1771194, at *4 (Pa. Super. 2018)

(remanding for the appointment of separate legal-interests counsel when the

guardian ad litem indicated that she could act as both guardian ad litem and

legal-interests counsel for the child, but failed to consult with the child or

otherwise state the child’s preferred outcome on the record).   After reviewing

the prior proceedings and appropriately consulting with each child,5

____________________________________________


5 We recognize that E.C. was only two years old at the time of the termination
proceedings and she may be too young to express her own preferred outcome


                                               -   6-
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legal-interests counsel shall notify the orphans' court whether the result of the

prior proceedings was consistent with each child’s legal interest or whether

counsel believes a new hearing is necessary to advocate separate preferred

outcomes or placements on their behalf. Id. The orphans' court shall conduct

a new hearing only if it serves the “substantive purpose” of providing the

children with an opportunity to advance their legal interests through new

counsel. Id. If, however, a new hearing is deemed unwarranted, the orphans’

court may re-enter the original decrees.

       Decrees vacated without prejudice. Case remanded for the appointment

of legal counsel and additional proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2018

____________________________________________


or placement. Compare In re D.L.B., 166 A.3d at 329 (Pa. Super. 2017)
(declining to remand for appointment of additional counsel for eight-month-
old child represented by a guardian ad litem, a practicing attorney, because
the child’s best and legal interests were not in conflict). However, because
we are remanding for the appointment of legal counsel for all the other
siblings, in the exercise of caution, we believe that counsel should be
appointed for E.C., as well. If E.C. is unable to express a preferred outcome,
appointed counsel shall notify the trial court as such.
                                       - 7-
