J-S37001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: A.R.F.H.-H.         :   IN THE SUPERIOR COURT OF
 A/K/A A.H., A MINOR                     :        PENNSYLVANIA
                                         :
                                         :
 APPEAL OF: D.H., FATHER                 :
                                         :
                                         :
                                         :
                                         :   No. 148 EDA 2018

            Appeal from the Order Entered December 15, 2017
  In the Court of Common Pleas of Philadelphia County Domestic Relations
                    at No(s): CP-51-AP-0001097-2017,
            CP-51-DP-0002642-2016, FID: 51-FN-002518-2016


BEFORE:       OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                          FILED OCTOBER 01, 2018

      Appellant, D.H. (Father) appeals from the order entered on December

15, 2017, involuntarily terminating his parental rights to A.R.F.-H., a.k.a.,

A.H. (a female, born in January, 2014) (the Child). Upon review of the record

and recent, applicable case law, we are constrained to vacate the order

without prejudice and remand this case for further proceedings consistent with

this memorandum.

      The trial court summarized the facts and procedural history of this case

as follows:

      On November 16, 2016, the Department of Human Services (DHS)
      received a General Protective Services (GPS) report which alleged
      that [the Child] and her parents were squatting in [a] home
      located [on] North 19th Street; that the home had a strong odor
      of marijuana; and that Father sold drugs in [the Child’s] presence.




____________________________________
* Former Justice specially assigned to the Superior Court.
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       The report alleged Mother[1] and Father left [the Child] in the care
       of her Maternal Grandfather and never returned.               Father
       telephoned Maternal Grandfather twice and stated during the first
       call he was in Miami and during the second call stated he was in
       New York. The report alleged the police were called as Father
       tried to remove [the Child] from Maternal Grandfather’s care. It
       was further alleged in the presence of Philadelphia [p]olice, [that]
       Father threated to damage Maternal Grandfather’s home [and]
       vehicle and assault Maternal Grandfather. The report alleged
       Mother and Father had domestic violence issues.

       On November 17, 2016, DHS attempted a visit at the home of
       Maternal Grandfather; however, there was no answer.

       On November 18, 2016, Maternal Grandfather telephoned DHS
       and stated [the Child] had been in his care since August 2016.
       Maternal Grandfather stated he planned to obtain a Protection
       from Abuse (PFA) order against Father because Father came to
       Maternal Grandfather’s home on November 12, 2016 and tried to
       remove [the Child] from his care. Maternal Grandfather stated
       that Father threatened to harm him and that there was a physical
       altercation. The Philadelphia Police Department was contacted.

       DHS received allegations that Father had no contact with [the
       Child] and lacked stable and appropriate housing.

       On November 18, 2016, DHS attempted to contact Father;
       however[,] the [tele]phone was disconnected.

       On November 28, 2016, DHS met with Maternal Grandfather who
       stated that on November 23, 2016, Father had attempted to
       remove [the Child] from daycare, but [the Child] was not in school
       due to illness. DHS determined that Maternal Grandfather’s home
       was appropriate.

       On November 28, 2016, DHS obtained an Order of Protective
       Custody (OPC), and [the Child] remained in the care of Maternal
       Grandfather.
____________________________________________


1 Mother, R.H., was facing termination of her parental rights and was present
at the hearing to terminate Father’s parental rights. However, Mother’s
counsel was not present and her case was continued. Mother is not a party
to the instant appeal.

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     On November 29, 2016, DHS spoke with Father who admitted
     marijuana use. Father stated he left [the Child] in Maternal
     Grandfather’s care in August 2016 due to out of state
     employment. Father asked Maternal Grandfather to care for [the
     Child] for a couple of months. [On November 29, 2016, the trial
     court appointed Daniel Silver, Esquire as the guardian ad litem
     [GAL] for the Child.]

     At the [s]helter [c]are [m]eeting held on November 30, 2016, the
     [c]ourt lifted the OPC, ordered the temporary commitment to
     stand, referred Father to the Clinical Evaluation Unit (CEU) for a
     drug and alcohol screen[] with dual diagnosis assessments and
     issued a [s]tay-[a]way [o]rder against Father as to Maternal
     Grandfather and his home.

     On November 30 2016, Father tested positive for marijuana.

     At the [a]djudicatory [h]earing held on December 7, 2016, the
     [c]ourt discharged the temporary commitment to DHS;
     adjudicated [the Child] dependent based on present inability to
     provide proper parental care and control; and committed [the
     Child] to the custody of DHS. Father was referred to the CEU for
     drug screens, dual-diagnosis assessments, monitoring and three
     random drug screens and ordered to follow all recommendations.
     Father was referred to domestic violence counseling, housing
     assistance, and parenting education classes and to the Achieving
     Reunification Center (ARC) for appropriate services. The [s]tay-
     [a]way [o]rder as to Father was ordered to stand. The [c]ourt
     ordered Father not to have any contact with [the Child’s] daycare.
     Father was to be awarded weekly supervised [] visits with [the
     Child] at the agency and was ordered to confirm visits 24 hours in
     advance.

     On December 19, 2016, Community Umbrella Agency (CUA) –
     Wordsworth held an initial Single Case Plan (SCP) meeting. [The
     Child’s] goal was identified as reunification.          The parental
     objectives for Father included the following:             1) improve
     relationship with [the Child]; 2) attend weekly supervised line-of-
     sight visits with [the Child]; 3) correct or stabilize health and sign
     all necessary consent forms; 4) comply with all court orders,
     service plans, and recommendations; 5) comply with [the] [s]tay-
     [a]way [o]rder as to Maternal Grandfather and [the Child’s]
     daycare; 6) attend ARC for parenting education and housing

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     services; 7) contact Menergy for domestic violence counseling; 8)
     achieve and maintain recovery for drug and alcohol issues; 9)
     attend CEU for an assessment and follow treatment
     recommendations; 10) complete three random drug screens; and
     11) [complete] all necessary consent forms for [the Child].

     On January 18, 2017, Father tested positive for marijuana.

     Wordsworth completed a [v]isitation [a]ssessment for Father’s
     January 21, 2017 visit with [the Child]. The assessment noted
     that Father failed to bring any snacks or gifts for [the Child] and
     that this was the first visit since October, 2016.

     On March 7, 2017, the CEU completed a progress report for
     Father. The report stated that Father failed to go to the CEU
     following the December 7, 2016 hearing as court-ordered. Father
     failed to attend his scheduled assessment on December 14, 2016
     [] and that Father failed to contact his case manager to reschedule
     an assessment.

     At the [p]ermanency [h]earing held on March 7, 2017, the [c]ourt
     found that [the Child’s] placement continued to be necessary and
     appropriate, and ordered [the Child’s] commitment to DHS to
     stand. Father was referred to the CEU for a drug screen and three
     random drug screens. Additionally, Father was referred for a dual-
     diagnosis assessment. Supervised line-of-sight and hearing visits
     were ordered to continue. Father was ordered to confirm his
     attendance 24 hours before each visit.

     The matter was [] listed on a regular basis before judges of the
     Philadelphia Court of Common Pleas, Family Court Division-
     Juvenile Branch pursuant to [S]ection 6351 of the Juvenile Act, 42
     Pa.C.S.A. § 6351, and evaluated for the purpose of reviewing the
     permanency plan of the [C]hild. In subsequent hearings, the
     [d]ependency [r]eview [o]rders reflect the [c]ourt’s review and
     disposition as a result of evidence presented, primarily with the
     goal of finalizing the permanency plan.

     On December 15, 2017, during the [t]ermination of [p]arental
     [r]ights [h]earing for Father, the [c]ourt found by clear and
     convincing evidence that Father’s parental rights, should be
     terminated pursuant to the Juvenile Act. Furthermore, the [c]ourt
     held it was in the best interest of the [C]hild that the goal be
     changed to [a]doption.

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Trial Court Opinion, 3/23/2018, at 1-3. This timely appeal resulted.2

       On appeal, Father presents the following issues for our review:

       1. Whether the [t]rial [c]ourt erred by terminating the parental
          rights of [Father] under 23 Pa.C.S.A. § 2511(a)(1)?

       2. Whether the [t]rial [c]ourt erred by terminating the parental
          rights of [Father] under 23 Pa.C.S.A. § 2511(a)(2)?

       3. Whether the [t]rial [c]ourt erred by terminating the parental
          rights of [Father] under 23 Pa.C.S.A. § 2511(a)(5)?

       4. Whether the [t]rial [c]ourt erred by terminating the parental
          rights of [Father] under 23 Pa.C.S.A. § 2511(a)(8)?

       5. Whether the [t]rial [c]ourt erred by terminating the parental
          rights of [Father] under 23 Pa.C.S.A. § 2511(b)?

Father’s Brief at 5.

       Before we may consider the merits of the issues raised on appeal, we

must consider whether Child was adequately represented by legal counsel at

the termination hearing.3 Recently, and applicable herein, our Supreme Court

issued an opinion to clarify a child’s statutory right to the appointment of legal

counsel. See In re T.S., 2018 WL 4001825 (Pa. 2018). That decision further

examined the Supreme Court’s prior decision in In re Adoption of L.B.M.,

161 A.3d 172 (Pa. 2017) and explained that children have a clear statutory
____________________________________________


2  On January 10, 2016, Father filed a notice of appeal and corresponding
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i). The trial court filed an opinion pursuant Pa.R.A.P. 1925(a) on
March 23, 2018.

3 This Court must raise the failure to appoint statutorily-required legal counsel
for children sua sponte. In re K.J.H., 180 A.3d 411 (Pa. Super. 2018).



                                           -5-
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right to mandatory appointment of counsel to represent their legal interests4

in contested termination of parental rights proceedings.

       Our Supreme Court granted allowance of appeal in In re T.S. to

determine whether separate attorneys were required to represent a child’s

best interests apart from his or her legal interests.       The Supreme Court

clarified its L.B.M. decision, recognizing that, “where a child’s legal and best

interests do not diverge in a termination proceeding, an attorney-[guardian

ad litem] representing the child's best interests can also fulfill the role of the

attorney appointed [] to represent the child's legal interests.” In re T.S.,

2018 WL 4001825, at *6. The T.S. Court also noted that the majority view in

L.B.M. “indicated that, where a child is too young to express a preference, it

would be appropriate for the [guardian ad litem] to represent the child's best

and legal interests simultaneously.” Id. The T.S. Court ultimately concluded

that when a child is too young5 or non-verbal, the child’s wishes cannot be

ascertained, and therefore there is no duty to advise the court. Id. (“As a
____________________________________________


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. Whereas, a child’s
best interests are to be determined by the trial court. Id.
5 In T.S., the Supreme Court and “[t]he parties agree[d] that, due to the

children's very young age (two and three years old), they [could not] have
formed a subjective, articulable preference to be advanced by counsel during
the termination proceedings[.]” Id. at *7. Conversely, however, the T.S.
Court noted that Pennsylvania's Rules of Professional Conduct refer to
“children as young as five or six years of age ... having opinions which are
entitled to weight in legal proceedings concerning their custody.” Id. at *7
n.17, citing Pa.R.P.C. 1.14, Explanatory Comment 1. In this case, there is no
dispute that at the time of the termination proceeding, the Child was over four
years old.


                                           -6-
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matter of sound logic, there can be no conflict between an attorney's duty to

advance a subjective preference on the child's part which is incapable of

ascertainment, and an attorney's concurrent obligation to advocate for the

child's best interests as she understands them to be.”). Ultimately, the T.S.

Court concluded:

      We [] reaffirm certain principles agreed upon by a majority of
      Justices in L.B.M., namely, that during contested termination-of-
      parental-rights proceedings, where there is no conflict between a
      child's legal and best interests, an attorney-guardian ad
      litem representing the child's best interests can also represent the
      child's legal interests. […M]oreover, if the preferred outcome of a
      child is incapable of ascertainment because the child is very young
      and pre-verbal, there can be no conflict between the child's legal
      interests and his or her best interests[.]

Id. at *10.

      Finally, in In re Adoption of T.M.L.M., 184 A.3d 585 (Pa. Super.

2018), this Court examined the requirements necessary for counsel to provide

adequate representation of a child’s legal interests as follows:

      At the time of the hearings, [T.M.L.M.] was just shy of six years
      old. While [T.M.L.M.] may not have been old enough to participate
      actively in [court appointed counsel’s] representation of him, it is
      not unlikely that [T.M.L.M.] has feelings one way or another about
      his mother and his permanency. Like adult clients, effective
      representation of a child requires, at a bare minimum,
      attempting to ascertain the client's position and advocating
      in a manner designed to effectuate that position. It may be
      that [T.M.L.M.’s] preferred outcome in this case is synonymous
      with his best interests. It may be that [T.M.L.M.] wants no contact
      with Mother. [T.M.L.M.] may be unable to articulate a clear
      position or have mixed feelings about the matter. Furthermore,
      termination of Mother's rights may still be appropriate even if
      [T.M.L.M.] prefers a different outcome.



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J-S37001-18



In re Adoption of T.M.L.M., 184 A.3d 585, 590 (Pa. Super. 2018) (emphasis

added) (internal citation omitted).

      Here, our review of the certified record reveals the following.        On

November 29, 2016, the trial court entered an “Order Appointing Counsel as

Child Advocate” naming Daniel Silver, Esquire “to represent the interests of

the Child in connection with proceedings related to dependency, termination

of parental rights, and adoption.”       Order Appointing Counsel as Child

Advocate, 11/29/2016, at 1. At the termination proceeding, Attorney Silver

entered his name on the record, stating that he was representing the Child as

guardian ad litem. N.T., 15/15/2017, at 3-4. James King, Esquire was also

present at the termination hearing. Id. at 3. Attorney King stated that he

was representing the Child as “Child Advocate.”      Id.   Upon review of the

record, however, there is no order or other indication of when, if, or in what

capacity the trial court appointed Attorney King. Likewise, there is no written

entry of appearance for Attorney King in the certified record.

      During the termination of parental rights proceeding, counsel for DHS

called the social worker involved with the Child as the sole witness. The social

worker ultimately testified that she believed that it was in the Child’s best

interest to terminate Father’s parental rights. Id. at 27-28. Attorney Silver

asked this witness questions pertaining to Father’s visitation, compliance with

drug and alcohol treatment, and progress with domestic violence and

parenting classes.   Id. at 30-32.     Attorney King asked a sole question




                                      -8-
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pertaining to the pre-adoptive home. Id. at 32. Thereafter, neither Attorney

Silver nor Attorney King had any additional evidence or witnesses. Id. at 34.

      At the end of the proceedings, counsel for DHS argued that there was

clear and convincing evidence that Father had not remedied the conditions

that led to the Child coming into the agency’s care and that termination of

Father’s rights was in the Child’s best interest. Id. at 43. Both Attorneys

Silver and King agreed with the recommendation that the termination of

Father’s parental rights would be in the Child’s best interest and had nothing

further to add. Id. at 44. Neither attorney, however, advanced the Child’s

legal interests, provided evidence of the Child’s preferred outcome in the

termination proceedings, or indicated the Child’s preference was unable to be

ascertained because of age or level of development.

      Based upon the record before us, there is no indication that counsel

interviewed the Child to determine whether she could verbalize a preferred

outcome as required. As such, counsel has not ascertained whether there was

a conflict between the Child’s best and legal interests. Therefore, the record

does not substantiate that the Child’s statutory right to legal counsel was

observed. Hence, we are constrained to vacate the order terminating Father’s

parental rights without prejudice.     On remand, after reviewing the prior

proceedings and appropriately consulting with the Child, Attorney King shall

notify the trial court whether the result of the prior proceedings was consistent

with the Child’s legal interests or whether counsel believes a new hearing is

necessary to advocate a separate preferred outcome or placement for the

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Child. See T.M.L.M., 184 A.3d at 591. The trial court shall conduct a new

hearing only if it serves the substantive purpose of providing the Child with an

opportunity to advance her legal interests through new counsel.         Id.   If,

however, a new hearing is deemed unwarranted, the trial court may re-enter

the original order terminating Father’s parental rights.

      Order vacated without prejudice.        Case remanded for additional

proceedings consistent with this memorandum. Jurisdiction relinquished.

      Judge McLaughlin joins the memorandum.

      President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/1/18




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