J-A16027-17

                             2018 PA Super 203

 IN RE: G.M.S., A MINOR                :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
                                       :
                                       :
                                       :
                                       :
 APPEAL OF: L.N.C., NATURAL            :
 MOTHER                                :   No. 299 WDA 2017

                   Appeal from the Order January 30, 2017
              In the Court of Common Pleas of Allegheny County
              Orphans’ Court at No(s): CP-02-AP-0000173-2016


IN RE: B.D.C., A MINOR                 :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
                                       :
                                       :
                                       :
                                       :
APPEAL OF: L.N.C., NATURAL             :
MOTHER                                 :   No. 300 WDA 2017

                   Appeal from the Order January 30, 2017
              In the Court of Common Pleas of Allegheny County
              Orphans’ Court at No(s): CP-02-AP-0000174-2016


  IN RE: L.A.C., A MINOR               :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
                                       :
                                       :
                                       :
                                       :
  APPEAL OF: L.N.C., NATURAL           :
  MOTHER                               :   No. 301 WDA 2017

                   Appeal from the Order January 30, 2017
              In the Court of Common Pleas of Allegheny County
              Orphans’ Court at No(s): CP-02-AP-0000175-2016

BEFORE:   STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER, J.*

*Retired Senior Judge assigned to the Superior Court.
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OPINION BY STRASSBURGER, J.:                           FILED JULY 11, 2018

       In these consolidated appeals, L.N.C. (Mother) appeals from the orders

entered January 30, 2017, in the Court of Common Pleas of Allegheny County,

which terminated involuntarily her parental rights to her minor children,

G.M.S. (born in 2007), B.D.C. (born in 2012), and L.A.C. (born in 2014)

(collectively, “Children”). We affirm.

       The certified record reveals the following. Mother is the biological

mother of Children.1 Mother has never married and, prior to 2015, exercised

sole legal and physical custody of Children. In the three years between March

of 2012 and March 2015, the family was referred to the Allegheny County

Office of Children, Youth and Families (CYF) eleven times.      Eventually, on

March 13, 2015, CYF opened a case and established safety goals for Mother;

however, Mother failed to make significant progress and CYF became

concerned about the safety of Children while they were in Mother’s care. On

May 12, 2015, CYF filed an emergency custody application (ECA) and

requested a shelter care hearing on behalf of Children. That hearing was held

on May 15, 2015, and a shelter care order was entered. Under the terms of

the order, legal custody of Children was transferred to CYS. G.M.S. was placed



____________________________________________


1 Mother has a fourth child, M.C., born in April of 2016. M.C. was removed
from Mother’s care at birth, adjudicated dependent in May of 2015, and placed
in foster care. At the time of the termination hearing as to Children, M.C. was
also in the care of maternal grandparents. She is not a subject of this appeal.



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in the physical custody of her biological father2, while B.D.C. and L.A.C. were

placed in foster care. Mother was ordered to have no unsupervised contact

with Children. On May 18, 2015, CYF filed a second ECA after discovering that

Mother was violating the terms of the first order. Continued placement was

ordered, with physical custody of B.D.C. and L.A.C. granted to Maternal

Grandparents.

       On June 2, 2015, CYF filed dependency petitions alleging that Children

were without proper care or control.           On June 16, 2015, CYF withdrew its

petition with regard to G.M.S.; however, it chose to proceed on the petitions

filed on behalf of B.D.C. and L.A.C. On August 4, 2015, both B.D.C. and L.A.C.

were    adjudicated      dependent,      although   they   remained   in   Maternal

Grandparents’ care.

       On October 21, 2015, when neither Mother nor G.M.S.’s biological

father, A.G.S., was making progress with respect to the child safety goals set

by CYF, a dependency petition was filed on behalf of G.M.S.            G.M.S. was

adjudicated dependent on December 1, 2015 and removed from her father’s

care. Legal and physical custody of G.M.S. was transferred to CYF and she

was placed with her siblings in the care of Maternal Grandparents. Following




____________________________________________


2 Genetic testing established that G.M.S.’s biological father is A.G.S. and
L.A.C.’s biological father is M.J.R. B.D.C.’s putative father, J.E.H., did not
make himself available for genetic testing.



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the adjudications of dependency, the permanency plan and placement goal

for Children was to return to Mother’s care, with a concurrent goal of adoption.

       On September 26, 2016, CYF filed separate petitions to terminate

Mother’s parental rights to Children involuntarily.3       The orphans’ court

conducted a termination hearing as to all three petitions on January 27, 2017.

Following the hearing, on January 30, 2017, the court entered separate orders

terminating Mother’s parental rights to Children. Mother timely filed a notice

of appeal on February 16, 2017, along with a concise statement of errors

complained of on appeal.

       On appeal, Mother asks us to consider whether the orphan’s court

abused its discretion in “concluding that termination of [Mother’s] parental

rights would serve the needs and welfare of [] Children pursuant to 23 Pa.C.S.

§ 2511(b).” Mother’s Brief at 9. Additionally, Mother contends that remand

is necessary in order to appoint counsel for Children. Id. at 19-20.

       We review Mother’s issues mindful of our well-settled standard of

review.

       The standard of review in termination of parental rights cases
       requires appellate courts to accept the findings of fact and
       credibility determinations of the trial court if they are supported
       by the record. If the factual findings are supported, appellate
       courts review to determine if the trial court made an error of law
       or abused its discretion. A decision may be reversed for an abuse
____________________________________________


3 CYF also sought to terminate involuntarily the rights of each child’s father.
Following a hearing, the orphan’s court determined that termination was in
Children’s best interest, and the rights of each man were terminated with
respect to that man’s putative child. The record does not indicate whether
any of the men appealed the orphans’ court’s decisions.

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       of   discretion    only   upon    demonstration       of    manifest
       unreasonableness, partiality, prejudice, bias, or ill-will. The trial
       court’s decision, however, should not be reversed merely because
       the record would support a different result. We have previously
       emphasized our deference to trial courts that often have first-hand
       observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

       We first address Mother’s argument that the orphans’ court erred by

failing to appoint counsel to represent Children’s legal interests pursuant to

23 Pa.C.S. § 2313(a) and our Supreme Court’s recent holding in In Re

Adoption of L.B.M., 2017 WL 2257203 (Pa. 2017). Mother acknowledges

that Children, collectively, had the benefit of a guardian ad litem (GAL) during

the termination proceedings, but contends that “the appointment of and

representation by a [GAL] who is also an attorney does not satisfy the

mandate” of the statute. Mother’s Brief at 11.

       Initially, we observe that Mother did not raise this claim before the

orphans’ court, and failed to include it in her concise statement of errors

complained of on appeal or as a separate issue in the statement of questions

included in her brief to this Court.4 Under normal circumstances, this would

result in waiver. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”); Krebs v. United

Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (citations omitted)
____________________________________________


4  This omission is especially glaring considering Mother’s counsel, the
Allegheny County Bar Foundation Juvenile Court Project, filed an amicus brief
in L.B.M. in support of appellant-mother and her right-to-counsel argument.

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(“[A]ny issue not raised in a statement of matters complained of on appeal is

deemed waived.”).

      However, Mother contends that this claim cannot be waived as the error

is structural in nature. Mother’s Brief at 19. We agree that Mother cannot

waive Children’s right to counsel. See In re Adoption of G.K.T., 75 A.3d

521 (Pa. Super. 2013) (holding that “[t]he right to counsel belongs to the

child, and there is no appointed counsel for the child who could have raised

the child’s rights in the proceedings before the [orphans’] court.”)(quoting In

re E.F.H., 751 A.2d 1186, 1189 (Pa. Super. 2000)). Therefore, we proceed to

address the merits of this issue. Section 2313(a) 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).

      In L.B.M., our Supreme Court held that Section 2313(a) requires courts

to appoint counsel to represent the legal interests of any child involved in a

contested involuntarily termination proceeding. 2017 WL 2257203 at 6. The

Court explained that a child’s legal interests are distinct from his or her best

interests, in that a child’s legal interests are synonymous with the child’s

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

court. 2017 WL 2257203 at 1.


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       Importantly, the justices disagreed on whether an attorney who serves

as a child’s dependency GAL can also serve as that child’s counsel during

contested involuntary termination proceedings. In the Court’s lead opinion,

Justice Wecht, joined by Justices Donohue and Dougherty, opined that a

child’s legal interests cannot be represented by his or her dependency GAL.

2017 WL 2257203 at 7.             However, the Court’s remaining four justices

disagreed with that portion of the lead opinion, and opined in a series of

concurring and dissenting opinions that a child’s dependency GAL may serve

as his or her counsel, so long as the GAL’s dual role does not create a conflict

of interest. 2017 WL 2257203 at 9. Thus, in this case, we conclude that the

orphans’ court was not required to appoint a separate attorney to represent

Children’s legal interests, so long as Children’s GAL was an attorney, and so

long as Children’s legal and best interests did not appear to be in conflict.

       Upon review, it is clear that Children’s legal interests and best interests

were aligned throughout the termination proceedings.           Dr. Patricia Pepe

testified at the termination hearing that she asked G.M.S. with whom she

would like to live and G.M.S. indicated that her preference was to be adopted

by Maternal Grandparents and “visit with” Mother.5 N.T., 1/27/2017, at 59,
____________________________________________


5 B.D.C. and L.A.C., were four-and-a-half and two-and-a-half, respectively, at
the time of the termination hearing and were not interviewed individually by
Dr. Pepe, although she did observe the younger children interact with Mother.
Dr. Pepe testified that Children appeared to have a primary attachment to
maternal grandparents and, of the younger children, B.D.C. only
acknowledged Mother as a caregiver to “a small extent.” N.T., 1/27/2017, at



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71. Child’s GAL, Stephanie Pawlowski, Esquire, argued on behalf of Children’s

position during the hearing, id. at 94, and filed a brief before this Court

supporting the termination of Mother’s parental rights.         Thus, Attorney

Pawlowski represented Children’s legal and best interests.       No remand is

necessary.6

       We turn now to Mother’s contention that the orphans’ court abused its

discretion by terminating her parental rights. Termination of parental rights

is governed by Section 2511 of the Adoption Act, 23 Pa.C.S. §§ 2101-2938,

which requires a bifurcated analysis.

       Initially, the focus is on the conduct of the parent. The party
       seeking termination must prove by clear and convincing evidence
       that the parent’s conduct satisfies the statutory grounds for
       termination delineated in Section 2511(a). Only if the court
       determines that the parent’s conduct warrants termination of his
       or her parental rights does the court engage in the second part of
       the analysis pursuant to Section 2511(b): determination of the
       needs and welfare of the child under the standard of best interests
____________________________________________


69, 72. L.A.C. did not appear to recognize Mother as a parental figure. Id. at
69.

6 The author of this Opinion dissented in L.B.M. to opine that the language of
Section 2313(a) “suggest[ed] that the legislature intended to differentiate
between legal counsel and GAL in TPR proceedings,” and favored remand for
a new hearing with the appointment of legal counsel because “the difference
between the child’s interests and the best interest of the child is staggering,
and it is readily apparent that a GAL appointed to represent the [children’s]
interests in the dependency proceedings cannot advocate effectively on the
[children’s] behalf with respect to issues raised surrounding the TPR and
adoption without creating a conflict.” In re: Adoption of L.B.M., 2016 WL
3080124 at *34 (Pa. Super. May 31, 2016) (unpublished) (Strassburger, J.,
dissenting). The author agrees with the position taken by Justice Wecht in
the Supreme Court’s Opinion, but is bound to follow the reasoning of the four
justices as discussed above.

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      of the child. One major aspect of the needs and welfare analysis
      concerns the nature and status of the emotional bond between
      parent and child, with close attention paid to the effect on the child
      of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

      In this case, the orphans’ court terminated Mother’s parental rights to

G.M.S. pursuant to Sections 2511(a)(2), (5), and (b), and to B.D.C. and L.A.C.

pursuant to Sections 2511(a)(2), (5), (8), and (b).        In her brief, Mother

concedes that CYF “did clearly and convincingly establish threshold grounds

for termination [as to Children] pursuant to Section 2511(a)(2).” Mother’s

Brief at 15. Therefore, we analyze the orphans’ court’s decision pursuant to

Section 2511(b) only. That subsection provides as follows.

      (b) Other considerations.--The court in terminating the rights
      of a parent shall give primary consideration to the developmental,
      physical and emotional needs and welfare of the child. The rights
      of a parent shall not be terminated solely on the basis of
      environmental factors such as inadequate housing, furnishings,
      income, clothing and medical care if found to be beyond the
      control of the parent. With respect to any petition filed pursuant
      to subsection (a)(1), (6) or (8), the court shall not consider any
      efforts by the parent to remedy the conditions described therein
      which are first initiated subsequent to the giving of notice of the
      filing of the petition.

23 Pa.C.S. §§ 2511(a)(2), (5), (8), and (b).

            Section 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. As this Court has
      explained, Section 2511(b) does not explicitly require a bonding
      analysis and the term ‘bond’ is not defined in the Adoption Act.
      Case law, however, provides that analysis of the emotional bond,
      if any, between parent and child is a factor to be considered as
      part of our analysis. While a parent’s emotional bond with his or
      her child is a major aspect of the subsection 2511(b) best-interest

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      analysis, it is nonetheless only one of many factors to be
      considered by the court when determining what is in the best
      interest of the child.

            [I]n addition to a bond examination, the trial court can
            equally emphasize the safety needs of the child, and
            should also consider the intangibles, such as the love,
            comfort, security, and stability the child might have
            with the foster parent. Additionally, this Court stated
            that the trial court should consider the importance of
            continuity of relationships and whether any existing
            parent-child bond can be severed without detrimental
            effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and

citations omitted).

      Here, Mother argues that terminating her parental rights would be

contrary to Children’s needs and welfare.     Mother contends that the court

erred in adopting Dr. Pepe’s analysis, improperly balanced the benefits of

Children remaining with Maternal Grandparents against the “perceived faults”

of Mother, and failed to address what effect termination would have on

Children. Mother’s Brief at 18-19.

      As this Court has explained, “a trial court has discretion to accept or

reject a witness’ testimony, including that of an expert witness, and is free to

believe all, part, or none of the evidence presented.” In re Bosley, 26 A.3d

1104, 1111 (Pa. Super. 2011) (citing Childress v. Bogosian, 12 A.3d 448,

456 (Pa. Super. 2011)).       In this case, Dr. Pepe described Children’s

interactional visit with Mother as “utter chaos” and expressed her concern that


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Mother would be unable to parent all three children at once. N.T., 1/27/2017,

at 61-62. Dr. Pepe explained that the youngest children do not recognize

Mother as a parental figure and, while there is evidence of a bond between

G.M.S. and Mother, such bond is not beneficial to G.M.S. and is eclipsed by

that G.M.S. has to her Maternal Grandparents. Id. at 59, 67, 69. Dr. Pepe

opined that, even in light of G.M.S.’s connection with her mother and the fact

that continued communication between Mother and Children after termination

of Mother’s rights was not a guarantee, adoption was in Children’s best

interests. Id. at 67-68, 71-72.

      In its opinions, the orphans’ court found credible Dr. Pepe’s testimony

that G.M.S. “has an attachment to Mother” but that such attachment “is not

necessarily positive or beneficial” to the child. Orphans’ Court Opinion re:

G.M.S., 3/17/2017, at 24 (quotations omitted).        In contrast, the court

acknowledged that the bond G.M.S. has with Maternal Grandparents is

“strong,” that G.M.S. looks to her grandparents to satisfy her daily needs, and

that she has expressed a desire to be adopted and “visit with” Mother. In light

of those facts, the court concluded that the permanency and stability provided

by adoption by Maternal Grandparents would significantly outweigh any

potential harm to G.M.S. Id. at 24-25. With respect to B.D.C., the court found

that there was no substantial bond between Mother and child and concluded

that termination would be in his best interest. Orphans’ Court Opinion re:

B.D.C., 3/17/2017, at 24. In so holding, the court found significant the age


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of the child and his degree of attachment to Maternal Grandparents. Id. at

25. Similarly, the court held that termination of Mother’s parental rights to

L.A.C., who was just a year old when adjudicated dependent and placed in the

care of Maternal Grandparents, would serve the child’s best interests because

there is “no substantial bond” between Mother and child. Orphans’ Court

Opinion re: L.A.C., 3/17/2017, at 24.         In sum, the court concluded that

Children’s bond with Mother is not necessary and beneficial, and that only

Maternal Grandparents have met Children’s developmental, physical, and

emotional needs and welfare. Id.

      Thus, the record supports the decision of the orphans’ court to accept

Dr. Pepe’s recommendation and terminate Mother’s parental rights. The

evidence presented during the termination hearing establishes that Children’s

interactions with Mother are chaotic and without structure, and that Children

are thriving in their grandparents’ care.      Even assuming that G.M.S. and

Mother do share a bond, preserving Mother’s parental rights could merely

prolong the emotional harm suffered by G.M.S. and her siblings.                By

terminating Mother’s parental rights now, the orphans’ court has ensured that

Children will receive the greatest degree of permanence and stability possible,

while protecting Children from this potential distress and uncertainty. As this

Court has stated, “a child’s life cannot be held in abeyance while a parent

attempts    to   attain   the   maturity   necessary    to   assume    parenting

responsibilities. The court cannot and will not subordinate indefinitely a child’s


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need for permanence and stability to a parent’s claims of progress and hope

for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.

2006).

      Finally, we reject Mother’s assertion that the orphans’ court placed an

undue emphasis on her failings as a parent. Mother is correct that Section

2511(b) focuses on the welfare of Child, and not Mother’s parental incapacity.

However, it is beyond cavil that Mother’s incapacity, and the likelihood that

she will never remedy that incapacity, which she has conceded, is an

important consideration when determining what is best for Children.         See

C.D.R., 111 A.3d at 1220 (citing In re Adoption of M.E.P., 825 A.2d 1266,

1276 (Pa. Super. 2003)) (“Clearly, it would not be in Child’s best interest for

his life to remain on hold indefinitely in hopes that Mother will one day be able

to act as his parent.”).

      Based on the foregoing, we conclude that the orphans’ court did not

abuse its discretion by terminating Mother’s parental rights to Children. We

therefore affirm the court’s January 30, 2017 orders.

      Orders affirmed.

      Judge Stabile joins the opinion.

      PJE Ford Elliott files a concurring statement in which Judge Stabile joins.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2018




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