J-S12024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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


                     v.

APPEAL OF: C.Y.

                                                      No. 1716 MDA 2017


                   Appeal from the Order, October 6, 2017,
              in the Court of Common Pleas of Luzerne County,
                      Orphans' Court at No(s): A-8562


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                             FILED JULY 11, 2018

      C.Y. (“Mother”) appeals from the order involuntarily terminating her

parental rights to her 14-year-old daughter, A.E.Y. (“Child”), pursuant to the

Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2) and (b). Concluding that her

appeal is frivolous, Mother’s counsel has filed an application to withdraw.

However, because we cannot ascertain whether the orphans’ court considered

the potential conflict between the child’s best interests and her legal interests,

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

proceedings consistent with this memorandum. Given this disposition, we also

deny counsel’s application to withdraw without prejudice.

      We glean the following background from the findings made by the

orphans’ court, all of which are supported by the record. The petitioners in

this matter are the child’s paternal grandmother and paternal step-
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grandfather. The child has been residing in her grandparents’ care since she

was three years old. See Orphan’s Court Opinion, 12/4/17, at 6.1 The local

children and youth agency had originally removed the child from Mother in

2006, because Mother was using heroin. Id., at 9. Mother also admitted to

previously using cocaine. Id. When the child was three years old, she was

found dependent and placed with the paternal grandparents. Id., at 6.

       Approximately two years after the child’s placement, in 2008, the trial

court entered an order that discontinued the dependency litigation and

conferred custody of the child to the grandparents; Mother was permitted to

enjoy only supervised custody. Id. Afterward, the contact between Mother

and child was sporadic. Id. In 2012, Mother filed for custody modification

and was awarded partial physical custody of the child. Id. Pursuant to the

modified order, Mother was entitled to have overnight custody.        Id.   But

throughout the following year, Mother was not consistent with her exercise of

custody; e.g., she often did not answer the door when the grandmother

transported the child to Mother’s home. Id., at 7. In 2013, Mother’s partial

custody reverted back to supervised visitation. In October 2014, Mother

stopped contacting the child completely. Id.

       On June 6, 2017, the grandparents filed a petition to terminate Mother’s

parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2) and (b) of the

Adoption Act.      The orphans’ court conducted hearings on October 3 and
____________________________________________


1 We note that the reproduced record is apparently missing two pages from
the orphans’ court’s opinion.

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October 5, 2017.       At the hearings, Susan Maza, Esquire, represented the

child’s best interests as a court-appointed guardian ad litem (“GAL”). Mother

was also represented by counsel. On October 6, 2017, the orphans’ court

entered an order terminating Mother’s parental rights pursuant to 23

Pa.C.S.A. §§ 2511(a)(1), (2), and (b). This timely-filed appeal followed.

       On January 5, 2018, Mother’s counsel filed an application to withdraw

as counsel and an Anders2 brief. We normally address first whether counsel

has complied with Anders before we reach the merits of the appellant’s

substantive claims. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.

Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.

Super. 1997)) (stating: “[w]hen faced with a purported Anders brief, this

Court may not review the merits of the underlying issues without first passing

on the request to withdraw”). However, in this case, we must immediately

address sua sponte whether the appointment of Attorney Maza as GAL

satisfies the requirements of 23 Pa.C.S.A. § 2313(a). We find that it does not.

       The child has a clear statutory right to counsel in contested involuntary

termination proceedings:

          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

____________________________________________


2 See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967).

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         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.A. § 2313(a).

      Appointment of counsel representing the child is mandatory, and the

court’s failure to do so is legal error. In re Adoption of T.M.L.M., --- A.3d -

--, 2018 Pa. Super. 87, (Pa. Super. Apr. 13, 2018) (citing In re Adoption of

G.K.T., 75 A.3d 521, 526 (Pa. Super. 2013)) (see also In re E.F.H., 751

A.2d 1186, 1189–90 (Pa. Super. 2000)). See also In re Adoption of N.A.G.,

324 Pa. Super. 345, 471 A.2d 871 (1984) (holding 23 Pa.C.S.A. § 2313(a)

creates a statutory right for a child to have counsel appointed who actively

advances his or her needs and welfare and owes loyalty exclusively to him or

her). This Court may 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 K.J.H., ––– A.3d ––––, 2018 Pa Super 37

(Pa. Super. Feb. 20, 2018).

      In a fractured opinion, our Supreme Court recently interpreted 23

Pa.C.S.A. § 2313(a). In Re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017).

In Section I of L.B.M., a section joined by five justices, the Court held that

courts must appoint counsel to represent the legal interests of any child

involved in a contested involuntary termination proceeding pursuant to 23

Pa.C.S.A. § 2313(a). In Re Adoption of L.B.M., 161 A.3d 172, 180 (Pa.

2017). In Section II–A of the opinion, a section joined by five justices, Justice

Wecht explained that a child's legal interests are distinct from his or her best



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

preferred outcome, while a child's best interests must be determined by the

court. Id. at 174.3

       Critically, the Justices disagreed on whether the role of counsel may be

filled by a guardian ad litem (GAL) who also represents child's best interests.

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 a

GAL. Id. at 180–82. 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 in the absence of an actual or potential conflict between a child’s

legal and best interests. Id. at 183–93 (emphasis added). See also In re

D.L.B., 166 A.3d 322, 329 (Pa. Super. 2017) (interpreting L.B.M. and

declining to remand for appointment of additional counsel for child who was

represented by an attorney who advocated for child's non-conflicting best and


____________________________________________


3 Our Supreme Court cites the Comment to Pa.R.J.C.P. 1154 in defining
“best interests” and “legal interests”:


          Legal interests denotes that an attorney is to express the
          child’s wishes to the court regardless of whether the
          attorney agrees with the child’s recommendation. “Best
          interests” denotes that a guardian ad litem is to express
          what the guardian ad litem believes is best for the child’s
          care, protection, safety, and wholesome physical and
          mental development regardless of whether the child agrees.

Pa.R.J.C.P. 1154 cmt.

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legal interests). A majority of the justices agreed that permitting the same

attorney to serve in both capacities should be determined on a case-by-case

basis. Id.

      Our review of the record reveals the following regarding Attorney Maza’s

role. During the hearings, she cross-examined certain witnesses but did not

introduce any witnesses or evidence.    The court allowed Attorney Maza to

make two recommendations, apparently to correspond with the bifurcated

termination process of first determining whether grounds for termination exist

before then determining whether termination serves the child’s needs and

welfare. The first recommendation came following the conclusion of evidence

as to Section 2511(a). Attorney Maza stated:

         I am not saying that the natural mother doesn’t love this
         child and I think it is admirable that she is trying to seek
         some help for herself, but as far as the parental duties of
         providing a stable environment for this child, a loving safe
         environment, I don’t believe the mother has fulfilled those
         obligations in an assertive manner to protect this child.

N.T., 10/3/17, at 65-66.

At the conclusion of the hearing, Attorney Maza reiterated:

         I again recommend to the court that the natural mother’s
         rights would be terminated. This child needs a stable
         environment. Her life for the last ten years has been
         residing with [the grandparents.] She does feel stable
         there. They provide security for the child. Again, it is
         admirable that the mother is seeking services for herself,
         but right now I believe it is in the best interest of this
         child to continue to reside with the [grandparents]
         and their intent is to adopt this child.



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N.T., 10/6/17, at 102 (emphasis added).

       As was the case in In re Adoption of T.M.L.M., we are unable to

ascertain whether the GAL purported to represent both child’s legal and best

interests. See id. We assume the GAL met with the child, but the record is

silent on this fact. While the orphans’ court entertained extensive testimony

regarding the child’s best interests, we are reduced to mere speculation

regarding the child’s preference. It some instances, particularly those cases

involving local child service agencies, a GAL has represented a child’s dual

interests for many months or years. In those cases, in the absence of any

indication of conflict, we would be satisfied there is none. But here, where we

can infer that Attorney Maza’s appointment is relatively recent, and where this

child – at 14 years old – may have strong a preference regarding termination

of her Mother’s parental rights, we are compelled to exercise that case-by-

case caution provided to us by our Supreme Court.4

        Testimony from the grandparent revealed that the child did not ask

about Mother, and the child was aware of both the proceedings and their

purpose. See N.T., 10/3/23, at 23. However, Mother’s counsel objected to



____________________________________________


4 A majority of the justices in L.B.M., supra, noted that there are times where
a child may be too young to express her wishes and thus too young to have
divergent legal interests and best interests. 161 A.3d 172, 181. This was the
case in In re D.L.B., 166 A.3d 322 (Pa. Super. 2017). In that matter, we
ruled there was no error when the orphans’ court appointed only a GAL, but
failed to appoint legal counsel. The critical difference in In re D.L.B. is that
the child in that case was only eight months old at the time of the termination.

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this line of questioning, and the grandparents’ counsel moved on.            This

exchange could have resolved the issue.

      At 14 years old, the subject child of these proceedings is all the more

equipped to share her personal position of how the orphans’ court should rule.

This position may be completely in line with Attorney Maza’s best interests

recommendation or it could be diametrically opposed to it. We cannot tell

from the record.

      Because we cannot determine whether Attorney Maza effectively

represented the child’s legal interests in this matter, we must remand the

matter to allow the trial court to ascertain this answer. We recognize that the

child has resided with her grandparents for as long as she could remember,

but we are constrained to vacate the order terminating Mother’s parental

rights and remand for proceedings consistent with this opinion.

      Upon remand, the court shall instruct Attorney Maza to determine

whether the child’s legal interests (i.e., her preferred outcome) are in line with

the best interests recommendation Attorney Maza set forth at the hearing.

The GAL should then notify the orphans’ court whether the result of the prior

proceedings corresponds with the child’s legal interests or whether the GAL

believes a new hearing is necessary to provide counsel an opportunity to

advocate on the child’s behalf. The orphans’ court shall conduct a new hearing

only if it serves the substantive purpose of providing the child with an




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opportunity to advance her legal interests through her new counsel.5 See

N.A.G., 471 A.2d at 875 (applying the similar remand instructions we provide

here). But in either event, the orphans’ court shall notify this Court by means

of a brief supplemental opinion indicating which of the two paths it takes. If

the orphans’ court need not set a new hearing, then we shall continue with

our review of Mother’s appeal. If a new hearing is necessary, we will reverse

and relinquish jurisdiction.

       Because we remand the matter, we also deny Mother’s counsel’s

application to withdraw at this time.

       Order vacated without prejudice to permit the orphans’ court to re-enter

it if a new hearing is not necessary. Application to withdraw denied without




____________________________________________


5 In N.A.G., the children were unrepresented until after the hearings, when
the orphans' court realized its mistake and belatedly appointed counsel for the
children. Father appealed from the order terminating his rights, arguing, inter
alia, that this Court should vacate the decree and remand for a new hearing
wherein the children would have representation. This Court made clear that
the failure to appoint counsel prior to the hearings was “contrary to the
statute's procedural mandate.” Id. at 874. However, because the children's
belatedly appointed counsel confirmed that the children did not wish to alter
the termination decree and did not request a new hearing so that counsel
could actively participate on their behalf, this Court held that the failure to
appoint counsel prior to the hearing was harmless error. Id. at 874–75. The
Court reasoned that the purpose of subsection 2313(a) is to guarantee the
child an advocate who owes his or her loyalty exclusively to the child, as
opposed to benefitting or creating rights in a contesting parent. Id. at 874.
Thus, the Court declined to remand for a new hearing where a hearing would
not serve a “substantive purpose.” Id. at 875.



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prejudice. Case remanded for proceedings consistent with this memorandum.

Jurisdiction retained.




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