J-S62016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE MATTER OF THE ADOPTION              :   IN THE SUPERIOR COURT OF
    OF: W.D.A., JR.                            :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.E.Z., NATURAL                 :
    MOTHER                                     :
                                               :
                                               :
                                               :   No. 984 WDA 2019


                 Appeal from the Decree Entered, June 5, 2019,
                  in the Court of Common Pleas of Erie County,
                Orphans' Court at No(s): 13A In Adoption 2019.


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

MEMORANDUM BY KUNSELMAN, J.:                         FILED DECEMBER 10, 2019

       J.E.Z. (Mother) appeals the decree granting the petition filed by the Erie

County Office of Children and Youth Services (CYS) that involuntarily

terminated Mother’s parental rights to her 11-year-old son, W.D.A., Jr.

(Child), pursuant to the Adoption Act.1 See 23 Pa.C.S.A. § 2511(a)(1), (2),

(5), and (b).       At the termination hearing, Child’s counsel was the same

guardian ad litem (GAL) who represented him during the dependency

proceedings. Mother’s sole issue on appeal is whether Child’s legal interests

conflicted with his best interests, as a conflict would deprive Child of his right

to legal counsel under 23 Pa.C.S.A. § 2313(a).           After careful review, we

____________________________________________


1 The orphans’ court also terminated Mother’s rights to her other son, two-
year-old A.A.C. Mother did not appeal that termination. The court also
terminated the parental rights of the children’s respective fathers; they did
not appeal those decrees.
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conclude that the orphans’ court did not abuse its discretion when it

determined no conflict existed. We therefore affirm.

      The record discloses the following pertinent history:

      The family originally came to the attention of CYS in 2014 due to

Mother’s illicit drug use. Although Child was adjudicated dependent at that

time, he eventually returned to Mother’s care. Recent history began in March

2018, when Child was removed from Mother’s care following an emergency

protective order.   The bases for the removal included Mother’s unstable

housing, inadequate supervision, her unstable mental health, and again, her

drug use. Mother acknowledged that she had been an addict for 20 years, her

drugs of choice being opiates, amphetamines, marijuana, and cocaine. The

dependency court adjudicated Child dependent in April 2018.

      Child’s initial permanent placement goal was reunification.          But

throughout the dependency proceedings, Mother could not alleviate the

circumstances that led to her children’s removal. She failed to complete a

dual diagnosis program, as she continued to test positive in drug screens or

failed to attend them at all.   Mother also attempted suicide.     The record

indicates that Mother only had two visits with Child. While CYS established

times for phone calls between Mother and Child, often times Mother would not

call. In late 2018, Child and his brother were placed with a kinship resource,

L.P., who is a cousin of Mother. L.P. held herself out as an adoptive resource.

      On January 30, 2019, upon a petition by CYS, the dependency court

changed the placement goal from reunification to adoption concurrent with

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legal custodianship. Legal custodianship was considered because Child was

initially unsure whether he wanted to be adopted.

       The orphans’ court held the termination hearing on May 29, 2019. At

the hearing, Child’s GAL from the dependency proceedings continued to

represent Child during the contested termination hearing. Mother objected to

the GAL’s representation, alleging that Child’s best interests and legal

interests conflicted, and that such a conflict deprived Child of his right to

counsel under 23 Pa.C.S.A. § 2313(a). 2          The GAL responded that Child

preferred adoption, i.e, that Child’s best interests and legal interests merged,

thereby allowing her continued representation.         Satisfied by the GAL’s

explanation of Child’s merged interests, the orphans’ court overruled Mother’s

objection and subsequently terminated her parental rights.3 Mother filed this

timely appeal.

       She raises one issue for our review:

____________________________________________


2 Importantly, we note that Mother’s attorney preserved the issue during the
termination hearing, thereby properly raising the issue on appeal. See N.T.,
at 76; see also In re K.M.G., -- A.3d --, 2019 PA Super 281 (Pa. Super.
September 13, 2019) (en banc)(holding that the Superior Court does not have
the authority to review sua sponte whether a conflict existed between
counsel’s representation and the child’s stated preference in an involuntary
termination of parental rights proceeding).

3 The orphans’ court determined that CYS established grounds under 23
Pa.C.S.A. § 2511(a)(1), (2), and (5) to terminate Mother’s parental rights.
The court determined further that termination would be in Child’s best
interests pursuant to Section 2511(b), notwithstanding Child’s bond with
Mother.



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      Whether the orphans’ court abused its discretion in terminating
      Mother’s rights because Child’s legal and best interests did not
      merge, were at conflict, and that legal counsel was not provided
      [to] Child?

See Mother’s Brief at 6.

      By not appealing other aspects of the orphans’ court decision, Mother

concedes that CYS established grounds for termination.         Thus, the only

question is whether Child actually preferred adoption; if he did not, then the

GAL’s representation would be defective under 23 Pa.C.S.A. § 2313(a), and

we would be constrained to reverse.

      We begin with our scope and standard of review regarding potential

conflicts in termination cases:

         It is well settled that when we review an order granting or
         denying termination of parental rights, we accept factual
         findings and credibility determinations supported by the
         record, and we assess whether the common pleas court
         abused its discretion or committed an error of law. We may
         not reverse merely because the record could support a
         different result. We give great deference to the orphans'
         courts that often have first-hand observations of the parties
         spanning multiple hearings. Moreover, the orphans' court is
         free to believe all, part, or none of the evidence presented,
         and is likewise free to make all credibility determinations
         and resolve conflicts in the evidence. Thus, we must give
         great deference to orphans' court credibility determinations
         and weight that the orphans' court places on the evidence
         regarding a potential conflict.

In re Adoption of K.M.G., -- A.3d --, 2019 PA Super 281, *4 (Pa. Super.

September 13, 2019) (en banc) (citations and quotation marks omitted).

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

termination proceedings:

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         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
         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).

      An appointment of counsel representing the child is mandatory, and

failure to do so is legal error. In re Adoption of G.K.T., 75 A.3d 521, 526

(Pa. Super. 2013) (citation omitted). This area of the law has been subject

to considerable litigation in recent years, beginning with our Supreme Court’s

decision In Re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017). In that matter,

a fractured Court interpreted Section 2313(a) to mean that a child involved in

a contested termination hearing must be afforded counsel to represent his

“legal interests,” that is, the child’s preferred outcome of the litigation.

      However, there are instances when a child’s GAL – who is typically a

holdover from the dependency proceedings – may act as a child’s counsel in

a termination hearing, so long as the child’s legal interests and best interests

do not conflict.     See 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 legal interests).

      The question at bar is whether Child’s legal interests and best interests

conflicted, thereby forbidding the GAL’s continued representation of Child


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during the termination hearing. Notwithstanding the GAL’s averment to the

orphans’ court that no conflict existed, Mother argues that Child should have

been appointed separate counsel, if only out of an abundance of caution.

Specifically, Mother contends that Child never understood that he was entitled

to pursue his preferred outcome. She emphasizes a critical moment of the

dependency case, when a CYS caseworker told Child that returning to Mother

was not an option. Mother cites to the fact that Child’s interest in adoption

wavered, and that he was upset when the caseworker told him he could not

return to Mother’s care.   We certainly understand Mother’s concern.

      Since Child was adjudicated in April 2018, three CYS caseworkers have

handled the case, and all of them testified at the termination hearing. The

first caseworker, Kenneth Parmerter, testified that he never discussed with

Child his relationship with Mother. See N.T., 5/29/2019, at 22. The second

caseworker, Manuela Quevedo, took over the case in September 2018. Her

involvement is the primary focus of Mother’s appeal.    Caseworker Quevedo

was the caseworker in charge when in January 2019 the placement goal

changed from reunification to adoption concurrent with legal custodianship.

During her direct examination by CYS, Caseworker Quevedo testified about

Child’s wavering between returning to Mother and adoption:

         Q:       And ultimately, did [Child] express a desire to be
                  adopted?

         A:       Correct.

         Q:       Was that made to you?

         A:       Yes.

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        Q:        After [Child] expressed the desire to be adopted,
                  [CYS] felt it necessary to pursue the termination of
                  parental rights?

        A:        Correct.

                                      […]

        Q:        So at first, [Child] was kind of vacillating as to
                  whether he wanted to be adopted or not. And that
                  was at the January hearing, where the goal was
                  changed to dual custodianship with adoption,
                  correct?

        A:        Correct. I believe when it was explained to him the
                  options that he had, he still believed he could go
                  back to his mom. When it was explained to him
                  that was not an option, he expressed wanting to be
                  adopted by Ms. [L.P.].

N.T., at 28-30.

     On cross-examination by Mother’s counsel, Caseworker Quevedo

provided more detail:

        Q:        Initially, prior to the hearing in January of 2019,
                  when Judge Trucilla decided to change the goal to
                  [Subsidized Permanent Legal Custodianship]
                  concurrent with adoption for [Child], did you have
                  a discussion with [Child] prior to that hearing about
                  what he wanted?

        A:        I had two discussions; yes.

        Q:        Is it true that [Child] wished to return to his
                  mother?

        A:        Correct.

        Q:        But it was explained to him that he couldn’t return
                  to his mother, because his mother wasn’t following
                  the treatment plan?

        A:        Correct.



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       Q.     When was it that [Child] was told that he did not
              have an option, as far as whether to see his mother
              or not?

       A:     It was the day after the court hearing. He was
              having a lot of behavioral issues, and I went to
              school and had a real talk with him.

       Q:     What exactly did you tell him?

       A:     Well, he was confused. Due to the conversation he
              had with [Mother] after the court hearing was over.
              So, he was under the understanding that she still
              had another six months to get him back. I had to
              explain to him in school that that was not true; that
              returning to his mother was not an option. And he
              had the option to stay with [L.P.] and be adopted
              by [L.P.] and become a legal and permanent part
              of her family, or he could just stay there until the
              age of 18 and ultimately do something different.

                                  […]

       Q:     Did [Child] ever tell you that he would like to have
              contact with his mother after the January 2019
              hearing?

       A:     I did not speak with him after the day I met him at
              school.

       Q:     So, you never had a conversation with him that - -
              as fair as whether or not he would like to see his
              mother?

       A:     Correct.

       Q:     Because he was under the impression that he could
              either be adopted or just continue to live with
              [L.P.]?

       A:     No. He was under the impression that his mom
              needed six more months to go back with her. And
              I had to clarify that to him, and given him the
              different options that he had after the court hearing
              that we held on January 30[, 2019].




                                 -8-
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        Q:        Did you ever tell him that he had the option to have
                  contact with his mother?

        A:        I did.

        Q:        What was his response?

        A:        He was very upset about it.

        Q:        Can you elaborate? He was upset, happy? Upset--

        A:        He was upset, sad. He was crying.

                                      […]

        A:        I – specifically, he had – the way the conversation
                  went, he had some questions about the court
                  hearing. I explained – he asked me if he was
                  supposed to return home after six months. I told
                  him that was not possible. That’s when he started
                  crying. I explained that his mother loved him very
                  much, but it was something that was out of her
                  control at this time. And it was something that - -
                  we needed to make sure that he was in a stable
                  place, a permanent place where he could thrive
                  and develop properly. He was crying the entire
                  time. I did explain to him, after he calmed down
                  after a little bit, the options that he had. And then
                  he explained to me that he wanted to be a
                  permanent part of [L.P.’s] life and her family. And
                  then I explained to him that if he wished, he could
                  have contact with [Mother] in the future. Which at
                  that time he started crying again. So I did not
                  inquire more if he wanted to start having contact
                  the week after, the month after. I did not inquire
                  more specifically about it.

N.T., at 38-43.

     The third and final caseworker, Rachel Campbell, testified that Child

expressed a desire to be adopted. Id. at 50.           On cross-examination,

Caseworker Campbell conceded that she did not have a conversation with

Child about his options. Id., at 51. Caseworker Campbell acknowledged on

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cross-examination that she did not know whether Child would like to have any

contact with Mother. Id.

      We commend Caseworker Quevedo’s tender consideration of Child’s

emotional well-being, particularly her reassurance to Child that he is loved by

Mother.     However, her explanation of Child’s “options” is concerning and

technically inaccurate. By virtue of the January 2019 goal change hearing,

the dependency court relieved CYS from the burden of providing reunification

services.   At this point, it was highly unlikely that Child would return to

Mother’s parental care. From the agency’s perspective, the case would result

in one of two outcomes: permanent legal custodianship or adoption.           But

contrary to Caseworker Quevedo’s explanation, from Child’s perspective, he

had the legal right to seek any of the following three options: permanent legal

custodianship, adoption, or reunification.

      Mother’s argument is that when Caseworker Quevedo explained the

proceedings, she led Child to believe that reunification was out of the question.

Mother’s implication is that the court could not discern whether Child’s

interests merged, because if Child was told his preferred outcome was

impossible, then it follows that he would acquiesce to adoption.

      At the termination hearing, during her cross-examination of Caseworker

Quevedo, Mother’s attorney raised this matter with the court:

      [Mother’s attorney]:

                        And I think that, you know -- my
                        understanding from the [GAL] is that
                        [Child’s] legal interests and his best interests

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                            merged. But I have some concerns, based
                            on some information that may have been
                            provided to him prior to this hearing.

        The court:          And you’re entitled to inquire into that
                            information. But I’m not sure what you’re
                            asking is appropriate for this witness.

Id. at 40.

        At the end of the hearing, Mother’s attorney preserved the issue of

whether Child’s interests merged. The court allowed the GAL to elaborate

about the merged interests:

           [GAL]:           I had met with [Child] a couple times. I met
                            with him prior to the January hearing. At
                            that time, it was his intent that he wanted to
                            stay where he’s at, at the home of [L.P.] but
                            did not want to be adopted. I felt that he still
                            -- he expressed that he wanted a relationship
                            with his mother at that time. And that this is
                            the reason why legal custodianship was
                            basically put on the table, I believe.

                            This past time when I met with [Child], on
                            May 18th [4], he basically expressed to me
                            that he was okay with moving forward with
                            the [involuntary termination] proceeding. I
                            explained the proceedings, and that his
                            rights to his parents would be terminated.

                                                   […]

                            And as regards to his mom, he didn’t really
                            say much about her, other than he really
                            likes where he’s at right now. He likes his
                            school. He get along really well with [L.P.].
                            He’s switching schools in the fall […].


____________________________________________


4   Eleven days prior to the termination hearing.


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                        He has a routine that he sets up. He goes to
                        the Y in the morning, and after - - from the
                        Y he’s bussed to [school], and then bussed
                        back to the Y, and then [L.P.] picks him up
                        there. He gets along with his little brother,
                        and expressed to me that he would like to
                        remain there.

Id. at 76-77 (footnote added).

      Whereupon, the proceedings concluded without Mother’s attorney

pressing the issue further.    Notwithstanding our unease with Caseworker

Quevedo’s characterization of Child’s having only two options, we conclude

Mother’s appeal does not merit a reversal of the orphans’ court decision.

      The question of whether there is a conflict between a child’s legal and

best interests is a mixed question of fact and law. To the extent that such a

determination relies on fact, i.e., whether the GAL met with the child and

ascertained the child’s true preferences, “we must give great deference to

orphans' court credibility determinations and weight that the orphans' court

places on the evidence regarding a potential conflict.” In re Adoption of

K.M.G., supra, – A.3d --, 2019 PA Super 281, at *4. In other words, we

must give all the deference that our abuse-of-discretion standard affords. And

we also note that “a GAL has a professional responsibility to notify the court

if there is a conflict so that the court may appoint separate counsel.” Id.; see

also Rule of Professional Responsibility 1.7.

      Mother argues that the GAL did not actually aver that Child wanted to

be adopted; rather, Mother cites the GAL’s statement that Child “didn’t have

much to say about [Mother].” Mother’s Brief at 12 (citing N.T., at 77). While

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Mother quotes the GAL accurately, she ignores the GAL’s previous statement:

“[Child] basically expressed to me [(the GAL)] that he was okay with moving

forward with the [involuntary termination] proceeding.           I explained the

proceedings, and that his rights to his parents would be terminated.” N.T., at

76-77.

      Evidently, the orphans’ court was satisfied that the GAL made a truthful

representation about meeting Child and explaining the process to him.

Ideally, the orphans’ court would have also been aware that the GAL had an

affirmative, ethical obligation to notify the court if the GAL detected a conflict.

In any event, the orphans’ court accepted that Child’s best interests and legal

interests merged. The question now before us is whether this determination

is supported by the record.

      Mother contends that Child’s preferred outcome, prior to the January

2019 goal change hearing, was to return to Mother’s care. She surmises that

following the January hearing, Child still wished to return to her care but did

not articulate the same because Child was told that was not an option. On

the other hand, according to the GAL, Child’s preference prior to January

2019 was to reside with L.P., his kinship placement, in some capacity. See

N.T., at 76. Assuming both of these facts are true, we still fail to see the

conflict.

      Witness testimony established that Child’s emotions toward Mother ran

the full gamut. The record supports an inference that Child wanted Mother to

achieve sobriety so he could return home, but barring that, he wished to reside

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in L.P.’s home. He may not have been sold on adoption or even permanent

legal custodianship at the time of the goal change hearing in January 2019;

he may have even wanted to eventually return to Mother. Still, at that point

in the dependency proceedings, his best interests (to remain safe and secure

with L.P.) and his legal interests (to remain with L.P. if Mother could not

achieve sobriety) were not in conflict.5

       By the time the orphans’ court conducted the termination hearing four

months later in May 2019, the GAL articulated that Child preferred termination

so he could be adopted. Thus, even if we accept Mother’s argument, that

Child wished to return to her care throughout the dependency proceedings,

the record still supports the determination that he wished to be adopted by

the time the termination hearing occurred.

       To   conclude:     we    give   great   deference   to   the   orphans’   court

determinations regarding a potential conflict.             Given the GAL’s ethical

responsibility to raise the conflict if one is detected, the GAL’s averments that

she met with Child, and that Child desired adoption, we would be inclined to

leave it at that.     But because the record of Child’s apprehension is more

developed in this case, there is more to review. Reviewing the cold record,
____________________________________________


5 Indeed, we note that Mother could have motioned for the appointment of
separate counsel during the dependency proceedings had she perceived a
conflict, but she did not. The dichotomy between best interests versus legal
interests exists in the representation of a child during the dependency
proceedings, and not just during a contested termination hearing. See In re
J’K.M., 191 A.3d 907 (Pa. Super. 2018) (reversing the dependency court’s
denial of mother’s motion for separate appointment and remanding for the
appointment of separate counsel).

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this Court could be tempted to reweigh the testimony and determine for itself

what exactly Caseworker Quevedo meant when she told Child that returning

to Mother was not an “option,” or what the GAL meant when she said Child

“basically expressed” that he was okay with termination, or what Child meant

when he “didn’t really say much” about Mother. Nonetheless, we must resist

the urge to substitute our judgment for that of the orphans’ court. Upon our

review, we discern no abuse of discretion or error of law.       The record

supported the orphan’s court decision that Child’s legal interests did not

conflict with his best interests.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2019




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