J-S73013-17

                              2018 PA Super 37

IN RE: K.J.H., A MINOR                      :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                                            :
APPEAL OF: L.A.P. AND D.W.P.                :     No. 1226 MDA 2017

                 Appeal from the Order Entered July 11, 2017
              in the Court of Common Pleas of Lebanon County,
                      Orphans’ Court at No(s): 2017-158

BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                     FILED FEBRUARY 20, 2018

      L.A.P. (Paternal Grandmother) and D.W.P. (Paternal Grandfather)

(collectively, Paternal Grandparents) appeal from the order entered on July

11, 2017, denying their petition to terminate involuntarily the parental rights

of K.Z. (Mother) as to K.J.H. (Child). After review, we vacate the order and

remand for proceedings consistent with this opinion.

      The orphans’ court set forth the factual background of this case as

follows:

            [Child] was born [in February of 2012 to Mother and D.J.H.
      (“Father”). Child] was born opium dependent due to Mother’s use
      of heroin during her pregnancy. [C]hild stayed in the [neo-natal
      intensive care unit] after his birth, but was eventually released
      into Mother’s care, and remained in Mother’s care until she went
      to prison due to drug use. When she went to prison, she left
      [C]hild in Father’s care; however, Father also has a history of drug
      use, and he [was incarcerated shortly after assuming custody of
      Child]. When Father was no longer able to care for [Child, Paternal
      Grandmother] assumed custody of [C]hild.

                                     ***


* Retired Senior Judge assigned to the Superior Court.
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            Since 2012, Mother has not provided support, either
     financially or emotionally, for [C]hild. Mother testified that[,]
     while incarcerated, she stopped attempting to contact [C]hild
     because [Paternal] Grandmother stated that [C]hild’s therapist
     said it would be detrimental to hear from Mother. Also, Mother
     testified that she was told by [a staff member] at Lebanon County
     Prison that [Paternal] Grandmother did not want Mother to contact
     her or [C]hild, and[,] if Mother continued to do so, Mother would
     be charged with harassment.

            During Mother’s incarceration from 2014 to 2017, Mother
     attempted to send [C]hild three cards/drawings via her [parents]
     but none of these cards made it to [C]hild. Only one attempt to
     send a card to [C]hild was made within six [] months prior to
     [Paternal Grandparents’] filing of [the termination petition].
     Mother is currently out of prison and sober. Mother moved in with
     her mother [] in Elizabethtown in order to aid her in staying sober.
     Mother is working and attending drug addiction counseling twice
     a week and taking an opioid-blocking medication. Mother has
     three other children beside[s C]hild in this matter. Mother’s goal
     is to gradually start seeing all of her children, and start to work
     her way to having periods of custody with each child. Currently,
     Mother is seeing all of her children on a monthly basis, except
     [C]hild subject to this [p]etition.

           On March 15, 2012, Father signed a guardianship
     agreement granting full guardianship of [C]hild to [Paternal]
     Grandmother. On May 4, 2012, [via a court order, Paternal]
     Grandmother was granted temporary physical and legal custody
     of [C]hild.

Trial Court Opinion, 8/7/17, at 2-4.   Mother was incarcerated at Lebanon

County Prison from 2014 to 2017 and she never contested this custody

arrangement. Mother was released from prison on February 27, 2017.

     On February 24, 2017, Paternal Grandparents filed a petition seeking to

terminate involuntarily Mother’s parental rights and terminate voluntarily

Father’s parental rights as to Child. On May 18, 2017, the trial court held a


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hearing on the petition.      On July 11, 2017, the trial court denied Paternal

Grandparents’ petition to terminate Mother’s parental rights.1        This timely

appeal followed. Both Paternal Grandparents and the orphans’ court complied

with Pa.R.A.P. 1925.

        Before we reach the issues presented by Paternal Grandparents on

appeal, we address sua sponte the orphans’ court’s failure to appoint counsel

for Child, as it is structural error requiring our consideration.2 The concept of

structural error in termination of parental rights cases has been addressed

recently by our Supreme Court.

              A structural error is defined as one that affects the
        framework within which the trial proceeds, rather than simply an
        error in the trial process itself. Structural errors are not subject
        to harmless error analysis. Generally, denial of counsel is a
        structural error, see Commonwealth v. Martin, [] 5 A.3d 177,
        192 ([Pa.] 2010); although such error usually stems from
        deprivation of a constitutional right to counsel. Here, by contrast,
        the right to counsel is statutory.[3] Nonetheless, we do not find


1   Father consented to the termination of his parental rights.

2 While there is no case directly on point, this Court has addressed sua sponte
the appointment of counsel for parents. See In re X.J., 105 A.3d 1, 4 (Pa.
Super. 2014) (holding this Court may address sua sponte the orphans’ court’s
failure to appoint counsel on behalf of a parent in a termination of parental
rights proceeding). Moreover, this Court regularly addresses sua sponte a
Post Conviction Relief Act court’s failure to appoint counsel on behalf of an
indigent petitioner, even where that individual has not raised the issue. See
e.g. Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011)
(holding “where an indigent, first-time PCRA petitioner was denied his right to
counsel—or failed to properly waive that right—this Court is required to raise
this error sua sponte and remand for the PCRA court to correct that mistake”).

3   Child’s statutory right to counsel is clear:


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      that distinction to be determinative. The same concerns are
      evident regardless of the derivation of the right. Whether the right
      to counsel is conferred by constitution or statute, the right having
      been conferred must be protected.

In re Adoption of L.B.M., 161 A.3d 172, 183 (Pa. 2017) (Opinion

Announcing the Judgment of the Court, with five Justices joining this section).

      Instantly, Mother was contesting Paternal Grandparents’ petition;

accordingly, the orphans’ court was mandated to appoint counsel. Moreover,

Child, due to his minority and lack of representation in the orphans’ court,

could not raise this issue himself. As we have pointed out:

      The right to counsel belongs to the child, and there is no appointed
      counsel for the child who could have raised the child’s rights in the
      proceedings before the [orphans’] court. The question goes to a
      fundamental statutory requisite to the [orphans’] court’s decision
      in this matter.

      Upon our careful review of the record in this case and the
      [orphans’] court’s disposition, we must conclude that the
      [orphans’] court committed an error of law by failing to appoint
      counsel to represent the child pursuant to 23 Pa.C.S.A. § 2313(a),
      which directs that the court “shall” appoint such counsel. This
      Court has previously observed that the word “shall” is usually
      mandatory or imperative when used in a statute, although
      whether that word is directory or permissive is dependent upon
      the intent of the Legislature. Regarding the Legislature’s use of

      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. § 2313(a).


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      the word “shall” in section 2313(a) of the Adoption Act, this Court
      has interpreted the word “shall” in section 2313([a]) as being
      mandatory, not permissive, and as serving as a direction to the
      court to appoint counsel.

In re Adoption of G.K.T., 75 A.3d 521, 526 (Pa. Super. 2013) (citing In re

E.F.H., 751 A.2d 1186, 1189-90 (Pa. Super. 2000)). See also In re

Adoption of N.A.G., 471 A.2d 871 (Pa. Super. 1984) (holding 23 Pa.C.S.

§ 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; failure to appoint counsel prior to hearing was only harmless

because the court eventually appointed counsel and the children did not wish

to contest the termination decree); E.F.H. (recognizing the unique position of

children, who have no one to raise failure to appoint statutorily-required

counsel on their own behalf); G.K.T. (same).

      Based on the foregoing, the orphans’ court erred by not appointing

counsel for Child, and this Court can and must consider this issue sua sponte.4


4 The learned dissent is suggesting that this opinion stands for the proposition
that “we may raise any structural error sua sponte.” Dissent, at 3. Such a
reading is incorrect, as this opinion speaks to only one structural error, the
appointment of counsel for a child in a contested termination of parental rights
proceeding. See generally Commonwealth v. Martin, 5 A.3d 177, 208-9
(Pa. 2010) (Saylor, J. concurring) (“There appears to be a split of authority
among jurisdictions as to whether structural error may be waived. Compare
Mains v. Commonwealth, 433 Mass. 30, 739 N.E.2d 1125, 1128 n. 3 (2000)
(“Our cases have held that even structural error is subject to the doctrine of
waiver.”), with State v. Aragon, 221 Ariz. 88, 210 P.3d 1259, 1262
(Ariz.2009) (declining to apply waiver principles to an error found to have
been structural). On the one hand, structural error, by definition, impacts the
basic integrity of the trial, which must be assured to maintain public
confidence in the criminal justice system. On the other hand, there is the
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J-S73013-17


Accordingly, we vacate the order and remand for proceedings consistent with

this opinion.

      Order vacated.    Case remanded for proceedings consistent with this

opinion. Jurisdiction relinquished.

      Judge Dubow joins this opinion.

      Judge Olson files a dissenting opinion.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/20/2018




possibility, if all structural errors are treated as non-waivable, for the defense
to omit an objection to assure a reversal on appeal in the absence of an
acquittal. See Reid v. State, 286 Ga. 484, 690 S.E.2d 177, 181 (2010)
(reflecting the position that structural error is waivable).”). Justice Saylor
then goes on to support a fact-based assessment of the particular structural
error being raised in deciding whether or not the error is waivable.


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