J-S38017-17


                                  2017 PA Super 238

IN THE INTEREST OF: J.I.P., A MINOR,              IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee



APPEAL OF: A.M.P., MOTHER

                                                      No. 368 EDA 2017


               Appeal from the Decree Entered January 11, 2017
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-AP-0000908-2016,
                            CP-51-DP-0002506-2011

BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.

OPINION BY SHOGAN, J.:                                  FILED JULY 20, 2017

       Appellant, A.M.P. (“Mother”), appeals from the decree entered on

January 11, 2017. The decree granted the petition filed by the Philadelphia

Department of Human Services (“DHS” or the “Agency”) to involuntarily

terminate Mother’s parental rights to her son, J.I.P., born in February of

2003 (“Child”),1 pursuant to the Adoption Act, 23 Pa.C.S. § 2511.        After

careful review, we affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    In addition to challenging the involuntary termination of her parental
rights to Child, Mother also assails Child’s permanency goal change to
adoption under 42 Pa.C.S. § 6351. Mother’s Brief at 15. However, an order
changing Child’s permanency goal is not before this Court.            See
Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en banc)
(stating that matters which are not of record cannot be considered on
(Footnote Continued Next Page)
J-S38017-17


      DHS became involved with Mother in 2010, due to Mother’s drug use

and inadequate housing. N.T., 9/29/15, at 7. The trial court noted that on

August 5, 2010, in-home services were provided to assist Mother with

parenting and helping her obtain substance abuse treatment.             Trial Court

Opinion, 3/2/17, at 2-3.         In November of 2011, DHS learned that Mother

was not attending substance abuse treatment and that she did not have

adequate or appropriate housing.            Id. at 3.   These issues persisted, and

Child was adjudicated dependent and removed from Mother’s care on

January 26, 2012.         Order, 1/26/12.        A safety plan was implemented in

December of 2011, and Child was moved to foster care with Mother having

supervised visitation.         Trial Court Opinion, 3/2/17, at 4-5.        Mother’s

participation in drug treatment and mental health treatment was sporadic

throughout 2012 and 2013. Id. at 8. Mother continued a pattern of initially

complying with DHS’s plans by obtaining adequate housing and attending

mental health and drug treatment; however, Mother would eventually cease
                       _______________________
(Footnote Continued)

appeal). The permanency review order dated January 11, 2017, indicated
that DHS’s petition to change the permanency goal to adoption was still
pending before the trial court. In its opinion, the trial court noted that a
hearing was scheduled for March 16, 2017, with regard to DHS’s petition to
involuntarily terminate the parental rights of M.V. (“Putative Father” or
“Father”). Trial Court Opinion, 3/2/17, at 1 n.1. We point out that DHS was
permitted to petition for the termination of parental rights without first
changing the child’s permanency goal. In re S.E.G., 901 A.2d 1017, 1029
(Pa. 2006). Moreover, the record does not reflect any additional appeals
filed by Mother with regard to Child pending before this Court. In addition,
neither Putative Father nor any other individual claiming to be Child’s father
is a party to the instant appeal.



                                            -2-
J-S38017-17


attending treatment regularly and lose her housing. Id. at 9-11.       Mother

continued to have visitation, but Child has been in foster care for more than

five years. Id. at 10-14.

       On October 4, 2016, DHS filed petitions for the involuntary termination

of Mother’s parental rights and goal change to adoption with respect to

Mother. On January 11, 2017, the trial court held an evidentiary hearing on

the involuntary termination petition with regard to Mother.           At the

commencement of the hearing, the trial court admitted as DHS Exhibit 1, by

agreement of the parties, the notes of testimony from the September 29,

2015, termination/goal change hearing regarding three of Child’s siblings,

A.Y.V., J.M.V., and J.J.P. N.T., 1/11/17, at 4-8.2 DHS then presented the

testimony of Jose DeJesus, the Community Umbrella Agency (“CUA”) case

manager. Attorney Regina Tuchinsky, the Child Advocate, cross-examined

Mr. DeJesus.       On cross-examination, Mr. DeJesus testified that Mother

resides in a one-bedroom apartment and that her fifteen-year-old daughter,




____________________________________________


2
   In a Memorandum filed on July 21, 2016, a panel of this Court affirmed
the decrees terminating Mother’s parental rights and the orders changing the
permanency goals with regard to these three children. In the Int. of
A.Y.V., a Minor, et al., 154 A.3d 864, 3210 EDA 2015 (Pa. Super. filed July
21, 2016) (unpublished memorandum).




                                           -3-
J-S38017-17


D.P., resides with her.3 Id. at 20. Mr. DeJesus testified that there would

not be sufficient space at the apartment for Child. Id.

       Next, Mother testified on her own behalf.      Mother testified that she

sees Child once weekly on Saturdays, between 10:00 a.m. and 6:00 p.m., at

her home.      Id. at 25.       She stated that they sometimes go out to eat

together. Id. at 25. Mother also testified that she speaks with Child on the

telephone every day and that he had told her that he expressed a desire to

come home and be with his sister. Id. at 26-27. Mother stated that D.P. is

fifteen years old, and that Child has a relationship with her.        Id. at 27.

Mother testified that she plans to move to a three-bedroom apartment and

that she has been undergoing mental health treatment at Hispanic

Community Counsel for two years. Id. at 27-28. Mother testified that she

had previously attended mental health therapy at Citywide.         Id. at 29-30.

Mother stated that she meets all of D.P.’s daily needs. Id. at 28.

       At the close of the testimony, the trial court stated as follows:

             Considering all the evidence which includes the evidence
       that was elicited at a prior termination hearing of which has now
       been moved into this record in the form of DHS-1, and the
       evidence offered today, which is deemed to be credible[,] by the
       case worker who has followed this case, the evidence is clear
       and convincing that [M]other has failed to remedy any of the
       issues that brought [C]hild into care and will not be in a position
       to remedy those issues going forward.

____________________________________________


3
  D.P. is not a party to this matter, and Mother’s parental rights to D.P. are
not involved in this appeal.



                                           -4-
J-S38017-17


            [C]hild has been in placement for over five years. Mother
     has modestly advanced any of her visitation and that appears to
     be the only goal in which she’s compliant. She does not have
     sufficient hous[ing]. The story [has] changed regarding her
     housing. At times, she alleges to have a sufficient hous[ing] and
     then at critical moments during the hearings that housing
     disappears.

           Considering the length in time in placement, the fact that
     [C]hild was removed from her care when he was placed the
     [c]ourt finds [termination appropriate] pursuant to [23 Pa.C.S.
     §] 2511[(a)(1),(2),(5), and (8)]. And considering as a basis for
     termination, considering [23 Pa.C.S. §] 2511[(b),] while there
     appears to be some bond between [M]other and [C]hild[,] that
     does not rise to a parental bond. Based upon the evidence
     which is clear and convincing[,] the parental bond exist [sic]
     with [C]hild’s caretaker father[, who] will be the adoption
     resource.

           Considering [23 Pa.C.S. § 2511(b),] and [23 Pa.C.S.
     § 2511(a)(1),(2),(5), and (8)] of the Juvenile [A]ct[,] [M]other’s
     rights are terminated as to [Child].

N.T., 1/1/17, at 30-32.

     The January 11, 2017 decree involuntarily terminated the parental

rights of Mother to Child pursuant to section 2511(a)(1), (2), (5), (8), and

(b) of the Adoption Act.    In the permanency review order entered on

January 11, 2017, the trial court directed that legal custody of Child would

remain with DHS, Child’s placement would remain with foster care, and the

ruling on the petition to change the goal to adoption pursuant to section




                                   -5-
J-S38017-17


6351 of the Juvenile Act would not be made until after the hearing on

March 16, 2017.4

       On January 18, 2017, Mother timely filed a notice of appeal, along with

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). In her brief on appeal, Mother raises two issues, as

follows:

       A. Whether the trial court erred in involuntarily terminating
       [M]other’s parental rights where it was not supported by clear
       and convincing evidence when [M]other completed all of her FSP
       goals and bonding and parenting capacity had no merit?

       B. Whether the trial court erred in involuntarily terminating
       [M]other’s rights where [M]other had consistently visited [C]hild
       and there was a bond between [M]other and Child and the
       termination of parental rights would have a negative effect on
       the developmental, physical and emotional needs of the child?

Mother’s Brief at 5 (some capitalization omitted).5

       In reviewing an order terminating parental rights, we adhere to the

following standard:

       [A]ppellate courts must apply an abuse of discretion standard
       when considering a trial court’s determination of a petition for
       termination of parental rights. As in dependency cases, our
       standard of review requires an appellate court to accept the
       findings of fact and credibility determinations of the trial court if
       they are supported by the record. In re: R.J.T., 9 A.3d 1179,
____________________________________________


4
  DHS states in its brief that Child’s permanency goal was changed to
adoption in an order filed on March 16, 2017. DHS’s Brief at 11 n.4. As
noted above, an order changing Child’s permanency goal to adoption is not
before this Court and does not appear of record.
5
    For purposes of our discussion, we have reordered Mother’s issues.



                                           -6-
J-S38017-17


     1190 (Pa. 2010). If the factual findings are supported, appellate
     courts review to determine if the trial court made an error of law
     or abused its discretion. Id.; R.I.S., 36 A.3d 567, 572 (Pa.
     2011) (plurality opinion)]. As has been often stated, an abuse of
     discretion does not result merely because the reviewing court
     might have reached a different conclusion.        Id.; see also
     Samuel Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51
     (Pa. 2011); Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003).
     Instead, a decision may be reversed for an abuse of discretion
     only upon demonstration of manifest unreasonableness,
     partiality, prejudice, bias, or ill-will. Id.

           As we discussed in R.J.T., there are clear reasons for
     applying an abuse of discretion standard of review in these
     cases. We observed that, unlike trial courts, appellate courts are
     not equipped to make the fact-specific determinations on a cold
     record, where the trial judges are observing the parties during
     the relevant hearing and often presiding over numerous other
     hearings regarding the child and parents. R.J.T., 9 A.3d at
     1190.    Therefore, even where the facts could support an
     opposite result, as is often the case in dependency and
     termination cases, an appellate court must resist the urge to
     second guess the trial court and impose its own credibility
     determinations and judgment; instead we must defer to the trial
     judges so long as the factual findings are supported by the
     record and the court’s legal conclusions are not the result of an
     error of law or an abuse of discretion. In re Adoption of
     Atencio, 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

     The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

     Moreover, we have explained:

     [T]he standard of clear and convincing evidence is defined as
     testimony that is so “clear, direct, weighty and convincing as to
     enable the trier of fact to come to a clear conviction, without
     hesitance, of the truth of the precise facts in issue.”



                                    -7-
J-S38017-17


Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

     This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of Section

2511(a).    In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

We will focus on Section 2511(a)(2) and (b), which provide as follows:

     § 2511. Grounds for involuntary termination

     (a) General rule.--The rights of a parent in regard to a child may
     be terminated after a petition filed on any of the following
     grounds:

                                     * * *

           (2) The repeated and continued incapacity, abuse,
           neglect or refusal of the parent has caused the child to be
           without essential parental care, control or subsistence
           necessary for his physical or mental well-being and the
           conditions and causes of the incapacity, abuse, neglect or
           refusal cannot or will not be remedied by the parent.

                                     * * *

      (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) and (b).

     In order to satisfy the requirements of section 2511(a)(2), the moving

party must produce clear and convincing evidence regarding the following


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J-S38017-17


elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal caused the child to be without

essential parental care, control or subsistence necessary for his physical or

mental well-being; and (3) the causes of the incapacity, abuse, neglect or

refusal cannot or will not be remedied. In re Adoption of M.E.P., 825 A.2d

1266, 1272 (Pa. Super. 2003).      The grounds for termination of parental

rights under section 2511(a)(2), due to parental incapacity that cannot be

remedied, are not limited to affirmative misconduct; to the contrary those

grounds may include acts of refusal as well as incapacity to perform parental

duties. In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).

     In her first issue, Mother challenges the termination of her parental

rights under 23 Pa.C.S. § 2511(a). Mother does not specifically direct her

argument at any particular subsection of section 2511(a), but challenges the

termination under 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8), in general.

Mother argues that, in the hearing on September 29, 2015, the counsel

representing DHS stipulated that Mother had completed her drug and

alcohol, parenting, anger management, housing, and Achieving Reunification

Center (“ARC”) goals of her Family Service (“FSP”) plan. Mother’s Brief, at

15 (citing N.T. 9/29/15, at 6-8).     Mother claims that the issue at the

previous hearing was whether she had the parental capacity to parent her

young children.   Id. at 15.   Mother contends that Child is not similarly

situated to the younger children to whom her parental rights were previously


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J-S38017-17


terminated. Id. She also argues that it has been one and one-half years

since the September 29, 2015 hearing was held. Id. Mother states that she

visits Child every weekend and that she takes care of her older child, D.P.

Id.   Thus, Mother urges that the trial court abused its discretion when it

terminated her parental rights to Child.

      The trial court addressed Mother’s claims of error as follows:

            Mother’s issues with mental health, and housing are
      substantiated on the record, both by the credible testimony of
      the CUA Case Manager Jose Dejesus, at both hearings, and also
      by incorporating the evidence elicited at the prior termination
      hearing, specifically the credible testimony of Dr. William Russell,
      a Psychologist with Assessment and Treatment Alternatives and
      Forensic Mental Health Services (“ATA”).

             This [c]ourt’s [o]pinion, filed on February 10, 2016,
      referred to Dr. Russell’s Parenting Capacity Evaluation conducted
      in August 2014, to opine that Mother had a significant
      impairment to provide a consistent environment for the
      [c]hildren to reside, that she was unable to provide consistent
      care to herself and was unable to anticipate potential problems
      with her actions and how they might impact her [c]hildren. He
      noted that Mother minimized the impact that her poor choices
      had on her [c]hildren [and] precluded her from being able to
      provide them with safety and permanency. Mother’s inability to
      provide stable housing throughout the history of the case was
      also noted in the [c]ourt’s Opinion. (Opinion, 2/10/2016, p.3).

             The evidence is clear and convincing regarding Mother’s
      non-compliance with the FSP objectives.        Although Mother
      testified she provides parental care for her fifteen[-]year[-]old
      daughter, this [c]ourt was not persuaded that she is able to fulfill
      her parental responsibilities. Mother has yet to demonstrate an
      ability to meet her housing needs on her own. She testified
      before this [c]ourt that she at times has housing, but then at
      critical moments she does not.         Based on the evidence
      presented, this [c]ourt found clear and convincing evidence to
      terminate Mother’s parental rights pursuant to 23 Pa.C.S.A.
      §2511(a)(1), (2), (5), and (8).

                                     - 10 -
J-S38017-17


                                    * * *

            This [c]ourt found that Mother evidenced an incapacity to
      parent. Mother repeatedly failed to complete objectives. The
      [c]ourt was not persuaded that Mother could or would resolve
      these issues in the near future.

Trial Court Opinion, 3/2/17, at 23-24, 26 (footnote omitted).

      The trial court’s conclusion regarding Mother’s mental health and

housing issues is supported by the record.     Mother has repeatedly shown

parental incapacities that she either cannot or will not remedy. We conclude

that termination of Mother’s parental rights under Section 2511(a)(2) is

supported by competent evidence. Adoption of S.P., 47 A.3d at 826-27.

      Next, Mother asserts that the trial court abused its discretion in

terminating her parental rights under Section 2511(b), as Child was bonded

to her.

            [M]other argues that the trial court erred in terminating
      her parental right to her son, J.I.P. where she had a substantial
      bond with her son. Testimony was that he saw her unsupervised
      on the weekends and that he enjoyed seeing her and his sister.
      He was thirteen-years-old at the time of the termination hearing
      and had only recently changed his mind to be adopted. Recent
      case law has advocated for the appointment of a child’s attorney
      in these situations to assure that the child’s position is properly
      asserts [sic]. [M]other believes that the order terminating her
      parental rights should be vacated or in the alternative, remanded
      for the appointment of a child advocate.

            Furthermore, there was testimony that Mother had
      substantially completed her Family Service Plan/Single Case Plan
      objectives. She had attended parenting, mental health and had
      completed her drug and alcohol treatment. She was caring for
      [D.P.] without the intervention of the Philadelphia Department of
      Human Services and could care for J.I.P. independently.


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J-S38017-17


Mother’s Brief at 8.

      We have explained that the focus in terminating parental rights under

Section 2511(a) is on the parent; conversely, under Section 2511(b), the

focus is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.

Super 2008) (en banc). In reviewing the evidence in support of termination

under Section 2511(b), our Supreme Court recently stated as follows:

      [I]f the grounds for termination under subsection (a) are met, a
      court “shall give primary consideration to the developmental,
      physical and emotional needs and welfare of the child.” 23
      Pa.C.S. § 2511(b). The emotional needs and welfare of the child
      have been properly interpreted to include “[i]ntangibles such as
      love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
      791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.
      1993)], this Court held that the determination of the child’s
      “needs and welfare” requires consideration of the emotional
      bonds between the parent and child. The “utmost attention”
      should be paid to discerning the effect on the child of
      permanently severing the parental bond. In re K.M., 53 A.3d at
      791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

      When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal citations

omitted). “Additionally, Section 2511(b) does not require a formal bonding

evaluation.” Id. Although it is often wise to have a bonding evaluation and

make it part of the certified record, “[t]here are some instances . . . where

direct observation of the interaction between the parent and the child is not




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J-S38017-17


necessary and may even be detrimental to the child.”        In re K.Z.S., 946

A.2d 753, 762 (Pa. Super. 2008).

      A parent’s abuse and neglect are likewise a relevant part of this

analysis:

      [C]oncluding a child has a beneficial bond with a parent simply
      because the child harbors affection for the parent is not only
      dangerous, it is logically unsound. If a child’s feelings were the
      dispositive factor in the bonding analysis, the analysis would be
      reduced to an exercise in semantics as it is the rare child who,
      after being subject to neglect and abuse, is able to sift through
      the emotional wreckage and completely disavow a parent . . .
      Nor are we of the opinion that the biological connection between
      [the parent] and the children is sufficient in of itself, or when
      considered in connection with a child’s feeling toward a parent,
      to establish a de facto beneficial bond exists. The psychological
      aspect of parenthood is more important in terms of the
      development of the child and [his or her] mental and emotional
      health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations

and quotation marks omitted). Thus, the court may emphasize the safety

needs of the child. See In re K.Z.S., 946 A.2d 753, 763-764 (Pa. Super.

2008) (affirming the involuntary termination of the mother’s parental rights,

despite the existence of some bond, where placement with the mother would

be contrary to the child’s best interests).

      Our Supreme Court has observed that the mere existence of a bond or

attachment of a child to a parent will not necessarily result in the denial of a

termination petition and that “[e]ven the most abused of children will often

harbor some positive emotion towards the abusive parent.” In re: T.S.M.,

71 A.3d at 267 (quoting In re K.K.R.-S., 958 A.2d at 535). The Supreme

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J-S38017-17


Court instructed, “The continued attachment to the natural parents, despite

serious parental rejection through abuse and neglect, and failure to correct

parenting and behavior disorders which are harming the children cannot be

misconstrued as bonding.” In re: T.S.M., 71 A.3d at 267 (citation omitted).

      The trial court stated:

            This [c]ourt finds credible the testimony from Mr. Dejesus,
      the CUA Case Manager who opined that [C]hild was aware of
      Mother’s relationship to him, however, [C]hild was not bonded to
      her. Instead[, C]hild looked to his foster parent for safety,
      comfort and to meet all of his daily needs. He believed [C]hild
      would not suffer irreparable harm if Mother’s rights were
      terminated and that termination of Mother’s parental rights and
      adoption would be in the best interest of [C]hild.

Trial Court Opinion, 3/2/17, at 25.

      We have explained that a parent’s own feelings of love and affection

for a child, alone, do not prevent termination of parental rights. In re Z.P.,

994 A.2d at 1121.       Further, this Court has opined: “[A] parent’s basic

constitutional right to the custody and rearing of . . . her child is converted,

upon the failure to fulfill . . . her parental duties, to the child’s right to have

proper parenting and fulfillment of [the child’s] potential in a permanent,

healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super.

2004) (internal citations omitted). It is well-settled that “we will not toll the

well-being and permanency of [a child] indefinitely.”       Adoption of C.L.G.,

956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008)

(noting that a child’s life “simply cannot be put on hold in the hope that [a

parent] will summon the ability to handle the responsibilities of parenting”)).

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       After careful review, we find the record supports the trial court’s

factual findings, and the court’s conclusions are not the result of an error of

law or an abuse of discretion. In re Adoption of S.P., 616 Pa. at 325-26,

47 A.3d at 826-27. Thus, it was proper for the trial court to find no bond

exists such that Child would suffer permanent emotional harm if Mother’s

parental rights were terminated. We find no abuse of discretion in the trial

court’s termination of Mother’s parental rights to Child pursuant to section

2511(b).

       Finally, we note that as part of her Section 2511(b) argument, Mother

asserts that the trial court should have appointed a separate attorney to

determine Child’s desires, citing In re Adoption of L.B.M., 156 A.3d 1159

(Pa. 2017).6 Mother’s Brief at 8, 10-11. Mother states that Child, who was

twelve years old at the time of the hearing, did not testify at the hearing,

and could have expressed his desires and provided a rationale for his

decision to be adopted. Id. at 11.

____________________________________________


6
   We note that after publication, In re Adoption of L.B.M., 156 A.3d 1159
(Pa. 2017), was corrected and superseded on May 23, 2017, by In re
Adoption of L.B.M., ___A.3d ___, 2017 WL 2257203 (Pa. 2017), which,
inter alia, clarified that part II-B of the opinion was not precedential and did
not overrule In re K.M., 53 A.3d 781 (Pa. Super. 2012) in its entirety.
Relevant to our discussion, in K.M., this Court held, inter alia, that 23
Pa.C.S. § 2313(a) did not require appointment of a separate attorney when
a guardian ad litem, who was an attorney, had been appointed and capably
represented both the legal and best interests of the child. The non-
precedential part II-B of In re Adoption of L.B.M. does not disturb this
portion of K.M.



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      We are cognizant of the Pennsylvania Supreme Court’s recent decision

in In re Adoption of L.B.M., wherein the author of the lead opinion,

Justice Wecht, stated that 23 Pa.C.S. § 2313(a) requires the trial court to

appoint counsel for a child in a termination of parental rights case, and the

failure to do so is not harmless error.        In part II-B of the lead opinion,

Justice Wecht concluded that a trial court is required to appoint counsel to

represent a child’s legal interests even when the child’s guardian ad litem,

who is appointed to represent the child’s best interests, is an attorney.

Justice Wecht would hold that the interests are distinct and require separate

representation.   However, four members of the Court disagreed with this

strict application of Section 2313(a).         Rather, they opined, in various

concurring and dissenting opinions, that separate representation would be

required only if the child’s best interests and legal interests conflicted.

      Read together, In re Adoption of L.B.M., 156 A.3d 1159 (Pa. 2017),

In re K.M., 53 A.3d 781 (Pa. Super. 2012), and 23 Pa.C.S. § 2313(a),

reveal that when the child has legal representation, appointment of separate

counsel is necessary only when the parent: 1) demonstrates an actual

conflict between the guardian ad litem’s responsibilities and the interests of

the child; and 2) requests separate counsel.          A failure to satisfy these

requirements results in waiver of this issue.

      In the present case, Mother did not raise before the trial court any

concerns that would have created a need for independent legal counsel for


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Child, nor did she make any claims that Attorney Tuchinsky failed to

properly represent Child’s legal and best interests. In fact, we observe that

Attorney Tuchinsky zealously represented Child on both fronts, and that

Child’s legal and best interests were not in conflict.

      Accordingly, having concluded that the trial court did not err or abuse

its discretion in terminating Mother’s parental rights pursuant to section

2511(a)(2) and (b), we affirm the termination decree.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2017




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