J-S45016-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: J.C.F., A MINOR      :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
APPEAL OF: Y.F., MOTHER                  :
                                         :
                                         :
                                         :    No. 519 EDA 2017

             Appeal from the Order Entered January 10, 2017
           In the Court of Common Pleas of Philadelphia County
              Family Court at No(s): CP-51-AP-0001268-2016
                                     CP-51-DP-0000085-2015

IN THE INTEREST OF: J.C.F., III, A       :    IN THE SUPERIOR COURT OF
MINOR                                    :          PENNSYLVANIA
                                         :
                                         :
APPEAL OF: Y.F., MOTHER                  :
                                         :
                                         :    No. 520 EDA 2017

             Appeal from the Order Entered January 10, 2017
           In the Court of Common Pleas of Philadelphia County
              Family Court at No(s): CP-51-AP-0001267-2016
                                     CP-51-DP-0000084-2015

BEFORE:    GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:

     I agree with the Majority that contrary to Mother’s argument, nothing

in our Supreme Court’s decision in In re Adoption of L.B.M., 161 A.3d 172

(Pa. 2017) requires that a child be present to express his or her preference

at contested termination of parental rights (TPR) proceedings. As discussed

by the Majority in this case, the majority of the Supreme Court in L.B.M.

held that 23 Pa.C.S. § 2313(a) mandates appointment of counsel for the



*Retired Senior Judge assigned to the Superior Court.
J-S45016-17

purpose of representing the child’s legal interest (i.e., the child’s preferred

outcome), and cited In re B.L.L., 787 A.2d 1007 (Pa. Super. 2001) for the

proposition that representation by counsel in contested TPR hearings

protects that interest. See Majority Memorandum at 16; L.B.M., 161 A.3d

at 174 n.3; B.L.L., 787 A.2d at 1014 (“As a guarantee that the child’s

interest will be served throughout a termination proceeding, the law

mandates that in addition to proof by clear and convincing evidence that

grounds for termination exist, the court must appoint counsel for the child

when the proceeding is being contested by one or both parents.”).          It is

counsel’s job to advocate on behalf of the child with regard to the child’s

preference.   See In re Adoption of J.N.M., 177 A.3d 937, 941 n.2 (Pa.

Super. 2018). In some cases, after consultation with the child, counsel may

decide that effective advocacy necessitates calling the child to testify.    In

other cases, counsel may choose to rely on other evidence in the record.

      However, I write separately to express my concern that certain

aspects of B.L.L. are at odds with the purpose of the Adoption Act, our

caselaw, and the actual practice of many courts. By way of background, in

B.L.L., the mother contended that 12-year-old B.L.L. was anxious to testify

but was absent from the last TPR hearing after being intimidated by the child

welfare caseworker.    B.L.L., 787 A.2d at 1009.     This Court held that the

orphans’ court did not err by denying the mother’s request to schedule an

additional hearing to permit B.L.L. to testify, noting that B.L.L. was



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represented by a guardian ad litem who presented her own expert evidence

with respect to B.L.L.’s needs and welfare.    Id. at 1011.    This Court also

found no support for the contention that B.L.L. was intimidated or

discouraged from testifying. Id. This Court then examined the differences

between custody, adoption, and termination of parental rights matters, and

concluded that unlike custody and adoption hearings, “[n]o statute or case

law exists which requires or permits the child’s testimony” in a termination

of parental rights hearing.1 Id. at 1016 (emphasis added).

      When comparing termination of parental rights proceedings to custody

proceedings, this Court observed that:

      [t]he balancing test between two parents involved in a custody
      proceeding is not applicable because parental rights are not
      being divested as they would be following involuntary
      termination. Thus, the best interest standard applicable in
      custody cases requires the court to weigh which parent will be
      best able to serve the needs of the child. In a termination case,
      only after the court in a bifurcated process has determined
      within the same proceeding that the parent has or has not
      forfeited his right to parent the child, must the court turn to
      review of the needs and welfare of the child.

Id. at 1013. However, the Court then went on to state that:

      [t]he needs and welfare of the child are a discrete consideration
      to be determined only after the statutory requirements for

1
  The Court also relied upon In re Child M., 681 A.2d 793 (Pa. Super.
1996). Id. at 1011. In Child M., this Court rejected the parent’s attempt
to invoke the constitutional protections of the Confrontation Clause to force
a child to testify about the parent’s abuse, stating that “despite the
constitutional dimension of termination proceedings, there exists no direct
civil equivalent to the federal or state constitutional clauses that govern the
prosecution of crimes.” Child M., 681 A.2d at 798.


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      termination have been met. As such, the preference of the
      child, reviewable in a custody proceeding, and his right to be
      heard on the record, is not relevant to termination proceedings,
      as the child is not electing a choice between two otherwise fit
      parents with whom he will be able to be placed. It is only when
      termination has been decreed and adoption pursued is the child's
      expression relevant to placement.

Id. at 1014. See also id. (“The testimony or preference of the child(ren) is

not required or permitted in an involuntary proceeding as the child cannot

cede his right to minimal proper nurturing.”).

      It is true that before the orphans’ court may examine whether

termination serves the child’s needs and welfare, the court must first

determine whether the petitioner has proved clearly and convincingly that

one of the substantive grounds for termination enumerated in 23 Pa.C.S. §

2511(a)(1)-(11) is met. See In Interest of Coast, 561 A.2d 762, 770 (Pa.

1989) (en banc). However, consideration of the child’s needs and welfare is

also a statutory requirement.2    See 23 Pa.C.S. § 2511(b) (“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.”)

(emphasis added).




2 In cases involving subsection 2511(a)(5) and (8), courts must consider a
child’s needs and welfare twice: “once in [subsection] (a)(5) [or (a)(8)] to
determine the initial statutory requisite[,] and if [that] statutory requisite[
is] satisfied, again under subsection (b).” Coast, 561 A.2d at 776; 23
Pa.C.S. § 2511(a)(5), (8) (requiring courts to determine as part of grounds
for termination that “termination of the parental rights would best serve the
needs and welfare of the child”).


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     Judicial inquiry of the needs and welfare of the child examines “the

effect of parents’ actions or omissions upon the child” to determine whether

the parent is meeting the child’s developmental, physical, and emotional

needs. Coast, 561 A.2d at 767. “[D]etermination 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 T.S.M., 71 A.3d

251, 267 (Pa. 2013) (citation and quotation marks omitted).    Additionally,

“[c]ommon sense dictates that courts considering termination must also

consider whether the children are in a pre-adoptive home and whether they

have a bond with their foster parents.” Id. at 268. Finally, courts also may

“equally emphasize the safety needs of the child,” In the Matter of

Adoption of M.A.B., 166 A.3d 434, 448 (Pa. Super. 2017), and courts may

determine that termination is appropriate when a child’s safety and security

needs outweigh any detriment in severing the relationship to a parent. In

re M.M., 106 A.3d 114, 119 (Pa. Super. 2014).

     Given these considerations, I fail to understand how a child’s

preference or testimony is not relevant to an orphans’ court inquiry.

Moreover, as the Court recently recognized in L.B.M., the purpose of section

2511 “is to ensure that the needs and welfare of the children involved are

actively advanced.” L.B.M., 161 A.3d at 180. In fact, the Court described




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the child’s needs and welfare as the “ultimate issue that the trial court must

resolve before granting the TPR.” Id.

      To be sure, a child’s preference is not and should not be the only

inquiry.   I agree that a “child cannot cede his right to minimal proper

nurturing,” B.L.L., 787 A.2d at 1014, and to that end, this Court and our

Supreme Court have determined that termination is appropriate in many

cases notwithstanding the child’s strong bond with a parent or expressed

preferred outcome of keeping the family ties intact.      See, e.g., T.S.M.,

supra; J.N.M., 177 A.3d at 946; In the Matter of T.D., 949 A.2d 910,

921–22 (Pa. Super. 2008). But given the statutory requirement that courts

give primary consideration to the child’s needs and welfare, I believe

B.L.L.’s statements regarding the relevance of a child’s preference and

testimony are at odds with the purpose of the Adoption Act, the caselaw

construing the act, and the practice of many courts.3



3
  Notwithstanding the pronouncements in B.L.L., courts routinely consider
the child’s preference or testimony in TPR cases, whether directly or
indirectly. See, e.g., In re K.Z.S., 946 A.2d 753, 762 (Pa. Super. 2008)
(noting child wished to remain with foster parent, whom he viewed as his
psychological parent, and concluding the bond between child and foster
parent was “the primary bond to protect, given K.Z.S.’ young age and his
very limited contact with Mother”); In re K.C.F., 928 A.2d 1046, 1053 (Pa.
Super. 2007) (explaining that termination met nine-year-old child’s needs
and welfare despite child’s desire to reunify because child felt insecure
around his mother and she was incapable of meeting his needs); In re E.M.,
908 A.2d 297, 307 (Pa. Super. 2006) (concluding the orphans’ court abused
its discretion in determining that termination served the needs and welfare
of 15- and 13-year-old children in part because of the children’s preferences
to reunify and reluctance to consent to adoption).


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      In my view, orphans’ courts may consider the child’s preference as

part of its analysis, particularly to attempt to decipher the effect that

termination would have on the child, and courts should have discretion to

permit the child’s testimony in appropriate cases.4         Nevertheless, I agree

that neither the Adoption Act nor L.B.M. requires the child’s attendance and

testimony   at   a   TPR   hearing,   and   therefore   I    join   the   Majority’s

memorandum.




4 While I may have permitted the children to testify in this case if I were the
trial judge, given our standard of review, I join the Majority in the instant
case because the trial court did not abuse its discretion in declining to
require the children to testify. Furthermore, as discussed supra, a child’s
presence and/or testimony is not required at every TPR hearing. In the
event that an orphans’ court does permit a child to testify at a TPR hearing,
in light of the sensitivity of the subject matter and the emotional impact
upon the child, the best practice might be for the court to put limits on the
scope and/or manner of the testimony, such as examining the child in
camera without the parents present.


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