J-S35023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: J.L., A MINOR         :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
 APPEAL OF: K.S.                           :
                                           :
                                           :
                                           :
                                           :
                                           :   No. 82 MDA 2018

                  Appeal from the Order December 14, 2017
                In the Court of Common Pleas of Tioga County
                     Orphans’ Court at No(s): 29 OC 2017


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY PANELLA, J.                       FILED SEPTEMBER 21, 2018

      K.S. (“Mother”) appeals from the order entered December 14, 2017, in

the Court of Common Pleas of Tioga County, which involuntarily terminated

her parental rights to her minor son, J.L. (“Child”), born in May 2009, pursuant

to § 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. We are

unfortunately constrained to vacate and remand for further proceedings

consistent with this memorandum.

      The trial court set forth the procedural and factual history of this matter,

in part, as follows:

      This matter is before the [c]ourt on the [p]etition for [i]nvoluntary
      [t]ermination of the [p]arental [r]ights of [K.S.], biological mother
      of [Child]. The [c]ourt notes this matter initially appeared in
      [d]ependency [c]ourt before Judge Robert Dalton in January of
      2011 following the grant of a petition for [e]mergency [p]rotective
      [c]ustody. In lieu of an adjudication hearing at that time, the child
      was removed from Mother’s custody and placed with the biological
      father, D.A. A second petition for [e]mergency [p]rotective
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      [c]ustody was filed and granted by Judge Joy McCoy in August of
      2014. Following a [s]helter [c]are [h]earing, the child was
      returned to the care of Mother and remained with Mother
      thereafter.

      [Child]’s case returned to the [c]ourt’s attention on or about July
      8, 2015 with the filing of a third application for [e]mergency
      [p]rotective [c]ustody alleging a failure to supervise, issues of
      domestic violence and related concerns. The request for
      [e]mergency [p]rotective [c]ustody was granted. A [s]helter
      [c]are [h]earing was later held and [Child] was directed to remain
      in foster care. Dependency and amended [d]ependency
      [p]etitions were filed[,] and following continuances by both
      parties, an [a]djudication [h]earing later occurred resulting in the
      finding of [d]ependency as related to [Child,] and his continued
      placement in foster care.

      [Child] has remained in the legal custody of [the] Department of
      Human Services pursuant to the [d]ependency action since July
      2015. During that time[,] the Department of Human Services has
      offered supportive services to Mother, including, but not limited
      to, the Effective Safe Parenting (ESP) and STEPS Programs. Tioga
      County has also supported housing and counseling services during
      this case. The Agency has further provided counseling and
      therapeutic support for [Child] and recommended the same for
      Mother. [Child] has been diagnosed as suffering from [r]eactive
      [a]ttachment [d]isorder and is receiving appropriate therapeutic
      services. Mother has often met with service providers, however,
      it has been reported on numerous occasions[,] and supported in
      prior [p]ermanency [r]eview [o]rders[,] that Mother has been
      unwilling to accept the advice offered through services and has
      regularly failed to follow through with the recommendations
      made, limiting the results of the services afforded.

Trial Court Findings of Fact and Opinion, 12/14/17, at unnumbered 2-3.

      On March 10, 2017, the Tioga County Department of Human Services,

Family Services Division (“DHS”), filed a petition for involuntary termination

of parental rights, seeking to terminate Mother’s and Father’s parental rights


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to Child. By order dated April 28, 2017, the trial court appointed attorney Jim

Smith, Esquire, “to represent the legal interests of the minor child, J.L., in the

above-captioned matter.” The trial court conducted hearings on the petition

on October 17, 2017, November 29, 2017, and December 1, 2017. Both DHS

and Mother called numerous witnesses. Mother testified on her own behalf.

On December 14, 2017, the trial court issued findings of fact and an opinion,

finding termination appropriate pursuant to § 2511(a)(1), (2), (5), (8), and

(b) of the Adoption Act. The trial court entered an order involuntarily

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

appeal along with a concise statement of errors complained of on appeal.

      Prior to addressing the merits of Mother’s appeal, we must first address

sua sponte the representation provided by Child’s legal counsel. See In re:

K.J.H., 180 A.3d 411, 412-414 (Pa. Super. 2018). Our Supreme Court, in In

re Adoption of L.B.M., 161 A.3d 172, 183 (Pa. 2017) (plurality) held that 23

Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent the legal

interests   of   any   child   involved   in   contested   involuntary   termination

proceedings. The Court noted that legal interests are synonymous with the

child’s preferred outcome, but the child’s best interests are determined by the

court. See id.

      Since L.B.M., this Court has clarified the requirements counsel must

meet in order to provide adequate representation in termination matters. See

In re Adoption of T.M.L.M., 184 A.3d 585, 587-591 (Pa. Super. 2018).

Counsel’s duty to represent a child does not stop at the conclusion of the

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termination of parental rights hearing. See id., at 590. See also In re M.T.,

607 A.2d 271, 276 (Pa. Super. 1992) (observing that child’s counsel abdicated

his legal responsibilities to his client because counsel, inter alia, failed to file

a brief, indicate that he joined another party’s brief, or otherwise notify this

Court of his client’s position).

       Here, the trial court appointed Attorney Smith as legal counsel for Child.

Attorney Smith was present at the hearings and conducted cross-examination

of witnesses. However, he did not indicate Child’s legal preference, and there

is nothing in the record to demonstrate that he interviewed Child, who was

nearly eight years old at the time, to ascertain his preferred outcome. And

there is nothing in the record that clearly indicates Child’s preference.

       The record indicates Child “goes back and forth about where he wants

to be.” N.T., 10/17/17, at 23. Later testimony indicated DHS placed Child in

respite care in November 2017 when another foster child in the foster home

sexually touched Child. See N.T., 12/1/17, at 25. Child reported to DHS he

did not feel safe in the foster home, and did not want to go back. See id.

However, Child has also discussed with his foster mother bringing his dirt bike

over to his foster home when the foster parents adopts him. See id., at 27.

Attorney Smith, in his concluding remarks, indicated he did not want to repeat

the remarks and argument of Mother’s counsel. See N.T., 11/29/17, at 50.1

____________________________________________


1 For reasons that are not clear from the record, the transcript labeled
December 1, 2017, appears to be the testimony from November 29, 2017,



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Attorney Smith noted, “[Mother] had been working towards, … progress with

continuing with services and continuing with whatever counseling that she had

to do.” Id. He then stated, “what I want[] to focus most on, of course, is the

best interest of the children,”2 referencing the bond between Child and his

brother. See id. Attorney Smith asserted the bond was “a very, very

important consideration in their interest with, you know, having the

opportunity to grow up with their mom.” Id., at 50-51. Further, Attorney

Smith noted “[i]t seems that these children do indeed love their mother and

care about her a great, great deal.” Id., at 50. Attorney Smith concluded:

        So, Judge, I would just say, of course, considering the best
        interest of these children and, of course, the bond that they have
        with the mother, I think that’s a, … vital import here. Thank you,
        Judge.

Id., at 51.

        There is no evidence Attorney Smith spoke with Child, and Attorney

Smith failed to clearly convey Child’s preferred outcome, focusing instead on

his best interests. Compounding these issues, Attorney Smith did not file a

brief in this Court, nor did he join the brief of another party.

        Accordingly, we are constrained to vacate the order in this matter, and

remand for further proceedings. See In re Adoption of T.M.L.M., 184 A.3d

585, 587-591 (Pa. Super. 2018) (vacating and remanding for further

____________________________________________


while the transcript labeled November 29, 2017, appears to be from December
1, 2017, as it includes counsels’ closing remarks.

2   Attorney Smith represented both Child and his brother.

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proceedings where the attorney admitted she did not interview the nearly six-

year-old child to ascertain the child’s preferences). See also In re Adoption

of D.M.C., ___ A.3d ___, 2018 WL 3341686 (Pa. Super., filed July 9, 2018)

(vacating and remanding where the record was unclear in what capacity the

attorney had been appointed to represent the children and whether the

attorney had ascertained the children’s legal interests prior to the hearing);

In re Adoption of M.D.Q., ___ A.3d ___, 2018 WL 3322744 (Pa. Super.,

filed July 6, 2018) (vacating and remanding where the record does not indicate

that counsel attempted to ascertain the children’s preferences and the record

does not reflect the children’s legal interests).

      On remand, we direct the trial court to re-appoint legal counsel for Child

forthwith. Counsel must attempt to ascertain Child’s preferred outcome as to

Mother by directly interviewing Child, following his direction to the extent

possible, and advocating in a manner that comports with Child’s legal

interests. Once Child’s preferred outcome is identified, counsel shall notify the

trial court whether termination of Mother’s parental rights is consistent with

Child’s legal interests.

      If Child’s preferred outcome is consistent with the result of the prior

termination proceedings, the trial court shall re-enter its December 14, 2017

order as to Mother. If the preferred outcome is in conflict with the prior

proceeding, the trial court shall conduct a new termination hearing as to

Mother to provide Child’s legal counsel an opportunity to advocate on behalf

of Child’s legal interests. See T.M.L.M., 184 A.3d at 591 (ordering that the

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trial court shall conduct a new hearing only if it serves the “substantive

purpose” of providing the child with the opportunity to advance his legal

interests through new counsel).

       Order vacated as to Mother without prejudice to permit the trial court

to re-enter the original order if a new termination hearing is not required.

Case   remanded     for   proceedings    consistent   with   this   memorandum.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/21/2018




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