J-A27013-19

                                   2020 PA Super 62


    IN THE INTEREST OF: D.N.G., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: A.G., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 480 EDA 2019

               Appeal from the Decree Entered January 17, 2019
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-AP-0000207-2018

    IN THE INTEREST OF: D.G., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: A.G., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 481 EDA 2019

                Appeal from the Order Entered February 1, 2019
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-DP-0002405-2016


BEFORE:      BOWES, J., SHOGAN, J., and COLINS, J.*

OPINION BY BOWES, J.:                                   FILED MARCH 13, 2020

        In these consolidated appeals, A.G. (“Mother”) appeals from the January

17, 2019 decree granting the petition filed by the Philadelphia Department of

Human Services (“DHS”) to involuntarily terminate parental rights to her son

D.N.G., born in October 2007, and the order changing the permanency goal
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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to adoption.1      We affirm the goal change, vacate the order terminating

parental rights, and remand for further proceedings.2

       The family court summarized the relevant facts and procedural history

as follows:

             DHS originally became involved with this family on
       November 5, 2014. DHS received a General Protective Services
       (“GPS”) report alleging that[:] Mother had not been providing food
       to D.N.G. and [his older brother who is not involved in this
       appeal]; Mother had not been ensuring that D.N.G. was attending
       school; D.N.G. had been playing in the streets without appropriate
       supervision; D.N.G. had attention deficit hyperactivity disorder
       (“ADHD”) and was not receiving treatment; Mother was pregnant;
       Mother had stated that the family home at the time was not her
       property; [and] Mother was unemployed.           This report was
       determined to be valid. [DHS did not immediately remove D.N.G.
       from the family home. Instead, it initiated in-home services.]

              ....

             [D.N.G.] is truant. During the 2014-2015 school year,
       D.N.G. had 42 unexcused absences and 33 late arrivals to school.
       During the 2015-2016 school year, D.N.G. had 31.5 unexcused
       absences and 18 late arrivals to school. During the 2016-2017
       school year, D.N.G. had 6 unexcused absences and 3 late arrivals
       to school. On September 27, 2016, CUA learned that Mother had
____________________________________________


1 While Mother purports to appeal the permanency review order dated January
17, 2019, which is the date that the family court announced in open court its
intention to change the permanency goal to adoption, the court did not change
the goal on that date. Instead, the court changed the permanent placement
goal in a subsequent permanency review order entered on February 1, 2019.
We adjusted the caption accordingly.

2 As Mother’s brief abandoned any argument in support of the appeal from the
permanency review order entered on February 1, 2019, at CP-51-DP-
0002405-2016, we affirm it without further discussion. See Commonwealth
v. Heggins, 809 A.2d 908, 912 n.2 (Pa.Super. 2002) (“[A]n issue identified
on appeal but not developed in the appellant’s brief is abandoned and,
therefore, waived.”); see also Mother’s brief at 4, 5.

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      informed D.N.G.’s school counselor that D.N.G. had been truant
      due to transportation issues from the shelter where the family was
      residing.

            On November 10, 2016, an adjudicatory hearing was held
      for D.N.G. and [his] siblings. D.N.G. was adjudicated dependent
      based on truancy and present inability to provide appropriate care
      and supervision. [D.N.G. remained in Mother’s care in the family
      home.] Mother was ordered to comply with mental health
      treatment recommendations. Mother was also ordered to ensure
      D.N.G. attends school on a daily basis with no unexcused
      absences or [tardiness] as well as to sign all necessary releases.
      Mother and D.N.G. were referred to the Behavioral Health System
      (“BHS”) for monitoring.      The trial court ordered that DHS
      supervision be implemented for [the] family.

Trial Court Opinion, 5/21/19, at 1-3. Twenty days after the adjudication of

dependency, DHS removed D.N.G. from the family home and placed him in

foster care, where he currently resides.

      Over the ensuing fifteen and one-half months, Mother complied with the

permanency plan      intermittently   and made    marginal   progress toward

reunification. On March 16, 2018, DHS filed petitions in the family court to

terminate Mother’s parental rights and to change the permanency goal from

reunification to adoption.

      On January 17, 2019, the family court presided over a combined goal

change/termination of parental rights trial.     The court appointed Michael

Graves, Esquire, as legal counsel for D.N.G. under 23 Pa.C.S. § 2313(a). The

guardian ad litem from the dependency proceedings, Tracy Chambers-

Coleman, Esquire, continued to represent the child’s best interests.       While

Attorney Graves did not present evidence or examine witnesses in support of



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his client’s opposition to termination of parental rights, he informed the family

court that D.N.G. opposed adoption and desired to return to Mother’s care.

N.T., 1/17/19, at 209-12. Correspondingly, in addition to stating that she did

not believe that DHS proved the statutory grounds for the termination of

parental rights, the guardian ad litem recommended that the family court

order a comprehensive bonding evaluation.       Id. at 216.    The family court

rejected the guardian ad litem’s entreaty even though it expressly

acknowledged D.N.G.’s bond with Mother and endorsed future contact. Id. at

222-33. Likewise, the family court rejected Mother’s request for permanent

legal custody (“PLC”) in lieu of the adoption, which would alleviate the need

to terminate her parental rights. Id. 217.

      Notwithstanding D.N.G.’s stated preference, the guardian ad litem’s

recommendation,     and the     court’s own validation of the       mother-son

relationship, the family court granted DHS’s petitions in open court, changed

the permanency goal to adoption, and involuntarily terminated Mother’s

parental rights to D.N.G. pursuant to Pa.C.S. § 2511(a)(1), (2), and (b). Id.

at 234. This timely appeal followed the entry of the written order and decree.

      Mother complied with Pa.R.A.P. 1925(a)(2)(i) by filing identical concise

statements of errors complained of on appeal simultaneously with her

respective notices of appeal.   She presents the following questions for our

review:

      1. Whether DHS presented clear and convincing evidence that
      Mother failed to remediate the conditions that led to the children’s

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      removal, pursuant to 2511(a)(1)(2)(5) and (8) of the Adoption
      Act?

      2. Whether the court erred and abused its discretion by granting
      the DHS Termination Petition severing Child from Mother in that
      DHS did not clearly and convincingly prove that it was in the
      [C]hild’s best interest to be adopted, Child had ineffective
      assistan[ce] of counsel, and Child told the CUA social worker and
      the Child Advocate [that] Child wished to return home to Mother
      and did not want to be adopted?

Mother’s brief at 4. DHS counters that the certified record supports the family

court’s determinations as to § 2511(a) and (b) and that the remaining

arguments are waived because they were not included in the Rule 1925(b)

statement. Regrettably, although listed among the counsel of record, neither

Attorney Graves nor the guardian ad litem filed a brief or correspondence in

this Court. Thus, we are without the benefit of D.N.G.’s positions in this appeal

relative to his legal interest and best interests.

      The common theme that underlies Mother’s second argument is that,

despite advising the family court that D.N.G. did not want to be adopted,

Attorney Graves neglected to represent that legal position zealously as

required by § 2313(a). Mother’s brief at 13. Since the vindication of D.N.G.’s

right to counsel under § 2313(a) is dispositive, we address it at the outset.

      As noted, supra, DHS asserts that this argument is waived because it

was not included in Mother’s Rule 1925(b) statement. We disagree. While

Mother framed her issues differently in the Rule 1925(b) statement, as we

discuss infra, this claim was stated sufficiently for the family court to address




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it.   See Trial Court Opinion, 5/21/19, at 21.      Hence, the argument was

preserved in the Rule 1925(b) statement.

       In contested involuntary termination proceedings, the representation of

the child’s legal interest is indispensable. 23 Pa.C.S. § 2313(a). Two Supreme

Court cases inform our examination of Attorney Grave’s representation of

D.N.G.’s legal interest. In In re Adoption of L.B.M., 161 A.3d 172, 174 (Pa.

2017) (plurality), and subsequently in In re T.S., 192 A.3d 1080, 1092 (Pa.

2018), the High Court declared that § 2313(a) compels the family court to

appoint counsel to represent a child’s legal interest in every contested

involuntary   termination   proceeding.      The   Supreme    Court   explained,

“appointment of client-directed counsel optimizes the protection of the child’s

needs and welfare, which form the ultimate issue that the trial court must

resolve before granting the [termination of parental rights].” In re Adoption

of L.B.M., supra at 180.

       We previously articulated this principle as follows:

       The purpose of the statutory requirement . . . [i]s not to create a
       right in [parents]. It was not intended to benefit a contesting
       parent or parents or to enhance by force of numbers the position
       of a contesting adult. Its purpose, rather, was to guarantee that
       the needs and welfare of the children would be advanced actively
       by an advocate whose loyalty was owed exclusively to them.

In re Adoption of N.A.G., 471 A.2d 871, 874-75 (Pa.Super. 1984) (footnote

omitted).

       As the case at bar does not implicate a potential conflict in the

concurrent representation of D.N.G.’s best interests and legal interest,


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substantively it is dissimilar to the majority of cases that discuss § 2313(a).

However, our recent discussion in In re Adoption of K.M.G., 219 A.3d 662,

669 (Pa.Super 2019) (en banc), appeal granted, 221 A.3d 649 (Pa. 2019) is

instructive in determining the procedural issues concerning whether Mother

can challenge Attorney Graves’s representation in the instant appeal. As we

stated in K.G.M., “any party has standing to raise the issue of [§ 2313(a)

representation] in the orphans’ court or Superior Court.”             Id. at 669.

Moreover, in dicta, we conceded that this Court possesses authority to review

issues regarding § 2313(a) representation where, as here, the issue is

asserted for the first time on appeal. We explained,

      when a party fails to raise the [representation] issue before the
      orphans’ court and raises it for the first time on appeal[,] . . . the
      Superior Court should review the record to determine if the record
      is clear and undisputed about whether the child is able to express
      “a subjective, articulable preference [to be advanced by counsel
      during the termination proceedings]” and if so, whether the child’s
      preferred outcome differed from the child’s best interest.

Id. at 670 (quoting T.S., supra at 1089); see also In Re D.L.B., 166 A.3d

322   (Pa.Super.   2017)   (addressing    challenge   to   guardian    ad   litem’s

representation of legal interest even though issue was raised for first time in

appellant’s reply brief). Thus, we address the merits of Mother’s argument

even though she neglected to object to Attorney Graves’s representation

during the family court proceedings.

      The crux of Mother’s argument is that Attorney Graves failed to advocate

D.N.G.’s legal interests beyond informing the family court that D.N.G. did not



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want to be adopted.      Mother’s brief at 13.    She highlights that counsel

neglected to present any evidence, call witnesses, or cross-examine DHS

witnesses about D.N.G.’s desire to reunite with Mother. DHS counters that

L.B.M. requires nothing more than the appointment of legal counsel, which

occurred herein. DHS’s brief at 25. It continues that counsel performed his

duty fully by discerning D.N.G.’s preference and reporting it to the court. Id.

at 26 (“Mr. Graves was not required to take any other steps”).           For the

following reasons, we reject the agency’s shallow perspective of a child’s right

to counsel pursuant to § 2313(a).

      In reference to Attorney Graves’s representation, the family court

provided the following summary,

      Child was appointed Legal Counsel. Legal Counsel met with Child
      and had the chance to observe him in the foster home. Child is
      eleven . . . years . . . old. Child informed Legal Counsel that he
      has no issues with the foster home or Foster Parent. Child did
      indicate that he does want to live with his Mother and that he did
      not want to be adopted.

Trial Court Opinion, 5/21/19, at 23 (citing N.T., 1/17/19, at 209-10)).

      Tellingly, during the evidentiary hearing, the family court framed

Attorney Graves’s § 2313(a) representation as talking to D.N.G. and reporting

to the Court. N.T., 1/17/19, at 211. The court’s narrow characterization of

legal counsel’s duties misstates Attorney Graves’s obligation to his client

pursuant to § 2313(a). While legal representation in this context necessarily

involves talking to the child client and reporting the child’s preferences to the

court, it is in no way limited to those two actions. To the contrary, pursuant


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to the majority of justices in In re Adoption of L.B.M., supra at 180,

Attorney Graves was required to advocate on behalf of D.N.G. and provide

zealous client-directed representation of D.N.G.’s legal interests.

      We agree with Mother’s assertion that Attorney Graves’s advocacy was

inadequate. It was Attorney Graves’s principal obligation as legal counsel to

ascertain D.N.G.’s legal interest and promote it.     As is apparent from the

family court’s account and the certified record, Attorney Graves did not

represent D.N.G.’s legal interest beyond advising the court of his client’s

preference. Counsel neglected to present any evidence to support his client’s

legal position, and while he did cross-examine Ashley Wolfe, the CUA case

manager, about the agency’s communications with D.N.G.’s birth father, N.T.,

1/17/19, at 45-46, counsel did not ask any questions relative to his client’s

desire to preserve Mother’s parental rights. Id. at 123. Moreover, counsel

declined to question Mother after DHS presented her testimony as if on cross-

examination. Id. at 195.

      Furthermore, counsel declined to present any legal argument in his

client’s favor. His total representation of D.N.G.’s desire to avoid adoption

and return to Mother’s custody was the following exchange with the family

court:
            The Court: All right. So, what can you report to the Court?

              Mr. Graves: I went and visited the child yesterday . . . at
      the foster mother’s home at around . . . seven p.m. . . . And he
      stated to me that he does not have any issues in the foster home.
      . . . [T]he home is fine.



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       [H]e doesn’t have any issues with the foster mother; with his
       living situation there whatsoever. However, he says that he does
       not want to be adopted and that he does want to live with his
       mother. That was what he told me. . . .

             The Court: Did you discuss if -- if it happens that he cannot
       be reunified with mom, did you discuss then what?

             Mr. Graves: Well, again, he said that, you know, there
       were no concerns or issues with the foster home or the foster
       parent and that, you know, he’d been there for, you know, over
       two years. And -- however, he, you know, would -- would not like
       to be adopted. And he would like to go home.

Id. at 209-10.

       Thereafter, Attorney Graves summarized his discussion with foster

mother, and he informed the court of foster mother’s preference for

adoption over PLC. Tellingly, counsel failed to present PLC to the court as an

alternative to adoption, even though that option aligned with his client’s legal

interest. Id. at 210. In fact, Attorney Graves neglected to join or support

Mother’s entreaty for PLC in lieu of the termination of her parental rights. Id.

at 217.    Similarly, he passed up an opportunity to argue his client’s legal

interest once the guardian ad litem challenged the termination of Mother’s

parental rights and recommended a bonding evaluation. Id. at 216.

       Most importantly, Attorney Graves failed to cast the most meaningful

legal argument in his arsenal, i.e., the probability that his soon-to-be-twelve-

year-old client would refuse to consent to any contemplated adoption.3


____________________________________________


3 Pursuant to § 2711(a)(1), “consent to an adoption shall be required of . . .
[t]he adoptee, if over 12 years of age.”

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Indeed, by terminating parental rights notwithstanding D.N.G.’s express

desire not to be adopted, the family court risked transforming D.N.G. into an

orphan without any true purpose. That is an outcome the family court no

doubt would be loath to achieve. See In re Adoption of L.J.B., 18 A.3d

1098, 1108 (Pa.Super. 2011) (“[T]he purpose of involuntary termination of

parental rights is to dispense with the need for parental consent to an adoption

when, by choice or neglect, a parent has failed to meet the continuing needs

of the child.”).

      In sum, based upon our review of the record, we conclude that Attorney

Graves’s representation did not satisfy the mandate of § 2313(a), because he

neglected to advocate for his client’s legal interest. Under the circumstances

of this case, where the guardian ad litem argued against termination and

recommended a thorough bond analysis, and where an eleven-year-old stated

unequivocally that he desired to return to his mother, it is not possible for

legal counsel to zealously represent his client’s legal interest merely by

engaging in one discussion with the child on the eve of trial and then

summarizing that conversation for the family court.        Rather than simply

reporting a preference to the family court, it was Attorney Graves’s obligation

to engage in client-directed advocacy on behalf of D.N.G. with regard to the

child’s preferred outcome. See L.B.M., supra at 180. Therefore, we hold

that D.N.G. was deprived of his statutory right to counsel to advance his legal

interest, a deprivation that continues in this appeal.


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      Accordingly, we vacate the decree terminating Mother’s parental rights

and remand for a new termination hearing as to Mother. It is left to the family

court to decide whether to appoint substitute legal counsel for the hearing or

to direct Attorney Graves to zealously advocate his client’s legal interests.

      Order affirmed. Decree terminating parental rights vacated, and matter

remanded for further proceedings consistent with this opinion. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/20




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