J-S47015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: A. M., A MINOR                      :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: R.M., FATHER                    :   No. 431 WDA 2018


               Appeal from the Order Entered February 7, 2018
     In the Court of Common Pleas of Allegheny County Orphans' Court at
                       No(s): CP-02-AP-0000142-2017


BEFORE:      OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                            FILED NOVEMBER 07, 2018

       R.M. (“Father”) appeals from the order entered February 7, 2018,

granting the petition filed by the Allegheny County Office of Children, Youth,

and Families (“CYF”) seeking to terminate involuntarily his parental rights to

his minor child, A.M., a female born in January 2007 (“Child”), with R.S.

(“Mother”), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(2) and (b). 1

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.

       On September 9, 2017, CYF filed a petition to terminate involuntarily

the parental rights of Mother and Father to Child. On September 11, 2017,


____________________________________________


1 In a separate order entered February 7, 2018, the trial court involuntarily
terminated the parental rights of Mother to Child pursuant to section
2511(a)(2), (5), (8), and (b) of the Adoption Act. Mother is not a party to
this appeal, nor has she filed a separate appeal.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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the trial court appointed Attorney Sara Johnson, from KidsVoice, as the

guardian ad litem (“GAL”) for Child; however, on September 26, 2017, the

trial court granted KidsVoice’s motion to vacate the appointment, and the trial

court entered an order for conflict counsel to enter an appearance. On October

2, 2017, Attorney Lynne P. Sherry, from the Allegheny County Office of

Conflict Counsel, Dependency Division, entered her appearance for Child as

conflict counsel.

      On February 7, 2018, the trial court held an evidentiary hearing on the

petition.   At the hearing, Attorney Alexandra Gruskos represented CYF;

Attorney Marsha C. Hughes Grayson represented Father; and Attorney Jeffrey

K. Eisenberg represented Mother.       Attorney Sherry represented Child as

conflict counsel, and Attorney Raymond Sanchas, an attorney from the

Allegheny County Office of Conflict Counsel, represented Child’s siblings, J.S.,

a male born in November 2014, and C.S. and N.S., twin females born in June

2012, as conflict counsel. N.T., 2/7/18, at 4. No one was present who was

specifically identified as Child’s GAL at the termination hearing. CYF presented

the testimony of Amanda McCloy, the CYF caseworker assigned to the case;

Kirk Thoma, a visit coach from Project STAR at the Children’s Institute; and,

via telephone, Neil Rosenblum, Ph.D., the court-appointed psychologist who

performed psychological evaluations of Child and Mother. Id. at 5-6, 69, 103,

111. Mother testified on her own behalf, and presented the testimony of her

mother, L.S., Child’s maternal grandmother (“Maternal Grandmother”). Id.


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at 150, 164. Father testified on his own behalf. Id. at 167. Attorney Sherry,

on behalf of Child, presented the testimony of Josh Rowe, a permanency

specialist from Project STAR and the foster care caseworker for Child. Id. at

172.

       The trial court set forth the factual background and procedural history

of this appeal as follows:

       While this case has a prior history with CYF, [Child] was brought
       into care on February 21, 2016, at the age of 9. At that time,
       [Child], along with her younger, minor siblings from different
       fathers, had been living with Mother. Father did not live in the
       home and had had minimal involvement with [Child].

       The triggering event occurred when the children were found alone
       in the bathroom, with one of the younger ones unresponsive. All
       of them were taken to the hospital, and there were concerns about
       the deplorable condition of their housing with Mother. Father
       appeared at the subsequent shelter hearing, but [Child] was not
       able to be placed with him, in large part because [Father] had
       never had any significant relationship with [Child].

       CYF developed goals for Mother and Father. Mother’s goals
       related to her mental health and intellectual disabilities and with
       both parents’ ability to address the children’s developmental and
       emotional needs. Although Mother made some efforts, she was
       not able to succeed sufficiently to resume parenting.

       Father’s goals were to address mental health issues and any
       possible intellectual disabilities, to engage in visiting and
       parenting training and to acquire and maintain adequate housing.
       During the life of the case, he moved several times but maintained
       a residence from June [] 2017 until the hearing the following
       February. Father had lived in the home with Mother, but only
       when [Child] was an infant, and[,] therefore, the two had never
       developed a relationship, with him having almost no involvement
       in the family’s life.

       Father was originally scheduled to see [Child] for supervised visits
       once a week, but this had to be scaled back for a time to every

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     other week due to his failure to visit consistently. Project STAR
     provided coached visits for Father from April to November of 2017,
     and then Father continued supervised visits thereafter. Coached
     visits consisted of more intensive work between a visit coach and
     Father as opposed to the simple monitoring of supervised visits.

     Over time, Father was unable to demonstrate consistency in his
     scheduled visiting with [Child], which resulted in disappointment
     and emotional harm to her.         More specifically, Father only
     completed 57% of his scheduled visits from the time of [Child’s]
     placement through the time of the hearing. Father’s visit coach
     testified credibly that, when Father came for visits, he was able to
     interact positively with his daughter in the sense that the two had
     fun, but he was unable to be affectionate and never succeeded in
     learning to have age-appropriate conversation with her. Father,
     for example, discussed subjects like his relationships with women,
     his monetary issues[,] and court-related matters. Additionally,
     Father upset [Child] during one visit not long before the January
     2018 hearing when he suggested to [Child] that his paramour of
     less than one year would adopt [Child].

     While Father is pleasant with [Child] and was able to learn to
     create an enjoyable experience with her, he has never made her
     a priority, focusing on his work schedule and on others, as
     evidenced by the number of missed visits. Father’s relationship
     to [Child] is similar to that of a peer rather than that of a parent.
     Father has never had to organize [Child’s] school or recreational
     life or provide her with parental guidance and supervision, and
     during her 23 months in care, he was never able to demonstrate
     the kind of commitment that this would involve. In fact, over the
     course of the case, he did not succeed in gaining unsupervised
     visits.

     A licensed psychologist with 40 years of experience evaluated
     Father and found him to be a likeable man who cares about
     [Child]. Unfortunately, Father is also a very casual man who did
     not appear to take anything very seriously and, as noted, had
     never given his daughter’s needs precedence. The psychologist
     expressed concern over Father’s complete lack of any history in
     functioning as a parent as well as over Father’s ability to make
     visits and show awareness of [Child’s] educational and social
     needs, in which she had shown some delays.




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      On September 9, 2017, CYF filed the current petition to terminate
      Mother’s and Father’s parental rights.

      Since her removal, [Child] has remained in the same foster home,
      where she has received excellent care. She attended physical
      therapy for balance concerns, which is an issue to monitor in light
      of Mother’s diagnosis of muscular dystrophy. [Child] is a loving
      child with interests such as art, and she has established a positive
      relationship with her foster parents and her foster sister. [Child’s]
      foster parents were previously appointed to serve as medical
      decision-makers for her because neither Father nor Mother was
      readily available or reachable when their consent was needed. On
      the other hand, the foster parents have been diligent in
      coordinating [Child’s] medical care.

      Testimony by the psychologist confirmed that [Child’s] family life
      in foster care is very positive in all respects. [Child] is in a
      different home from her siblings, in part because she ended up in
      a somewhat de facto parental role during time with them. She is
      in therapy to assist her in dealing with her separation from her
      siblings.   The psychologist testified that [Child] will likely
      experience a reduction in anxiety when given certainty and
      permanency in her family life. He further opined that [Child] has
      moved psychologically from her original family to that of her foster
      home, which is a pre-adoptive placement.

Trial Court Opinion, 4/18/18, at 4 (internal citations omitted).

      On February 7, 2018, the trial court entered the orders involuntarily

terminating the parental rights of both Father and Mother to Child. On March

5, 2018, Father timely filed a notice of appeal and concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

      In his brief on appeal, Father raises the following issues:

      I. Whether the Trial Court erred and/or committed a fatal error
      and/or abused its discretion by finding that the Office of Children,
      Youth and Families met their burden of proof and proved by clear
      and convincing evidence that the parental rights of [Father]
      should be terminated pursuant to 23 Pa[.]C.S.A. 2511(a)(2)?


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       II. Whether the Trial Court erred and/or committed a fatal error
       and/or abused its discretion by finding that the Office of Children,
       Youth and Families met their burden of proof and proved by clear
       and convincing evidence that terminating the parental rights of
       [Father] would best meet the needs and welfare of [Child] both
       now and in the future as prescribed by 23 Pa[.]C.S.A. 2511(b)?

Father’s Brief at 1.

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

first consider whether Child was, in fact, represented by legal counsel at the

termination hearing. In re K.J.H., 180 A.3d 411 (Pa. Super. 2018) (providing

that   this   Court     may,     sua    sponte,   raise   the   failure   to   appoint

statutorily-required legal counsel for a child). 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., ___ A.3d ___, 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 right to mandatory appointment

of counsel to represent their legal interests in contested termination of

parental rights proceedings.2

       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

____________________________________________


2 “[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.



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clarified its L.B.M. decision and recognized 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 young3 or non-verbal, the

child’s wishes cannot be ascertained, and therefore there is no duty to advise

the court. Id. (“As a 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”). The

T.S. Court concluded:




____________________________________________


3 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[.]” In re T.S., 2018 WL 4001825 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, Child was over 11 years old.

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      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.

      Moreover, 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.

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

added) (internal citation omitted); In re Adoption of M.D.Q., 192 A.3d 1201

(Pa. Super. 2018) (vacating and remanding where this Court was unable to

ascertain from the record whether the appointed counsel represented the

subject children’s legal interests and ascertained their preferred outcomes,

but appeared to have speculated as to their preferred outcomes, and this


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Court could not determine the children’s legal interests from the record,

either).

      We also note that, in In re Adoption of D.M.C., 192 A.3d 1207 (Pa.

Super. 2018), this Court vacated the trial court’s order, which involuntarily

terminated the mother’s parental rights to her children because (among other

things) “the certified record [did] not reveal what role [the c]hildren’s attorney

served” and, even though the children’s attorney spoke with one of the

children and conveyed that child’s request for permanency to the court:

      we cannot discern from the record whether D.M.C. fully
      understood during the limited telephone call with [the attorney]
      that his adoption would mean, absent a post-adoption contact
      agreement (PACA), that his relationship with [his m]other would
      be legally and permanently severed. Even though [the attorney]
      advocated for PACA and a continued relationship with [the
      m]other, it is by no means guaranteed. It is unclear whether
      D.M.C. would continue to prefer adoption if his adoptive family did
      not support PACA or informally arranged post-adoption visitation.

Id. at 1211.

      Our review of the certified record reveals the following.           At the

termination proceeding, Attorney Sherry entered her name on the record,

stating that she was representing Child. N.T., 2/7/2018, at 4. During the

termination of parental rights proceeding, counsel for CYF called the

caseworker involved with Child, Amanda McCloy, as its first witness.          Ms.

McCloy ultimately testified that she believed that it was in Child’s best interest

to terminate Father’s parental rights. Id. at 30-31. Attorney Sherry cross-

examined Ms. McCloy, asking questions pertaining to the medical conditions



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of Mother and Child, Child’s placement in foster care, Father’s involvement

with Child and his visitation with Child, and Father’s progress with his FSP

objectives. Id. at 52-64. Attorney Sherry also asked the witness questions

pertaining to the pre-adoptive foster home. Id. at 64-65. Attorney Sherry

cross-examined Mr. Thoma, the visit coach, pertaining to the visitations

between Child with Mother and Child with Father, and the effect of Father’s

visitations and missed visitations on Child. Id. at 93-95. Moreover, Attorney

Sherry cross-examined Dr. Rosenblum regarding his evaluations of Child

conducted in October 2016 and October 2017, and about Child’s pre-adoptive

foster care home. Id. at 142-143. She further questioned the psychologist

witness as to his opinion regarding whether adoption would be in Child’s best

interests. Id. at 143-145. Finally, Attorney Sherry presented the testimony

of Josh Rowe, questioning him about Father’s visits with Child. Id. at 172-

184.

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

clear and convincing evidence that Father had not remedied the conditions

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

rights was in Child’s best interest. Id. at 190. Attorney Sherry agreed with

the recommendation that the termination of Father’s parental rights would be

in the Child’s best interest. Id. at 199-201.

       During her summation, Attorney Sherry stated:

       MS. SHERRY: Your Honor, in this case, I do believe that the County
       has met [its] burden of proof by clear and convincing evidence
       that grounds exist for termination. I think that Mr. Eisenberg is

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      right when he says that it is not just about complaints but progress
      also. And[,] unfortunately, the parents didn’t make their progress
      necessary. This [c]ourt made findings of minimal[] progress at
      several review hearing[s], including the most recent ones.

            In terms of Sections 5 and 8, as they pertain to [Father],
      while it is true that [Child] was not in his custody upon removal,
      if he had been immediately available to parent [Child], then
      [Child] wouldn’t have been adjudicated dependent. In fact, the
      order of adjudication actually makes a finding that [Father] hadn’t
      been [Child’s] caretaker for most of her life and that he needed to
      establish a relationship with [Child]. And I think that directly goes
      not to grounds, and the fact that his visits were inconsistent at 57
      percent, but also to [Child’s] needs and welfare.

             [Child] does enjoy a relationship with her father, and she
      would like to continue this with him and her mother. But she also
      has made it very clear that she wants to be adopted in this foster
      home and that she has experienced anxiety and distress, as the
      testimony has elicited today. Much of that has been over missed
      visitation. So[,] the father may want to continue the peer
      relationship that he has with [Child], and hopefully he’ll be able to
      do so. Those missed visits really impeded on [Child’s] ability to
      establish that relationship with her father, and I think consistent
      with her emotional needs and welfare, Dr. Rosenblum also
      provided very clear and convincing testimony that adoption is the
      permanency goal that is most consistent with [Child’s] needs and
      welfare. So I would ask [the trial court] to terminate the rights of
      [M]other and [Father].

N.T., 2/7/18, at 199-201.

      Although the trial court appointed Attorney Johnson to serve as GAL for

Child in the termination proceedings, and subsequently vacated that

appointment and ordered the entry of appearance by conflict counsel, it is not

clear from Attorney Sherry’s entry of appearance or from her brief that she

was serving in the capacity of both Child’s legal counsel and GAL.            While

Attorney Sherry stated that Child had “made it very clear that she wants to

be adopted in this foster home,” there is nothing in the record that supports

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her statement. Based upon the record before us, there is no indication that

Attorney Sherry, as Child’s legal counsel, interviewed Child to determine

Child’s preferred outcome, as required.       Attorney Sherry filed a brief on

behalf of Child in this Court, but she did not discuss Child’s preferred outcome

in the brief, either. In re Adoption of T.M.L.M., 184 A.3d at 590 (reminding

that counsel’s duty to represent a child does not end at the conclusion of the

termination hearing).

      Further, even if Child told Attorney Sherry that “she wants to be adopted

in this foster home,” Attorney Sherry also represented to the trial court that

“[Child] does enjoy a relationship with her father, and she would like to

continue this with him and her mother.”               N.T., 2/7/18, at 199-201

(emphasis added). As is similar to In re Adoption of D.M.C., the record is

not clear whether Child was aware that “absent a post-adoption contact

agreement (PACA), that [her] relationship with [her father] would be legally

and permanently severed.” In re Adoption of D.M.C., 192 A.3d at 1211.

      As such, it is not clear from the record that counsel ascertained whether

there was a conflict between the Child’s legal interests and best interests, as

is required under this Court’s recent case law. Therefore, the record does not

substantiate that the Child’s statutory right to legal counsel was satisfied by

the appointment of Attorney Sherry and her representation of Child.

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

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




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proceedings and appropriately consulting with Child, Attorney Sherry shall

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

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

necessary to advocate a separate preferred outcome or placement for the

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 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.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2018




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