J-A07024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INT. OF: J.J., A MINOR              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: E.J.                            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1599 MDA 2017

                Appeal from the Order Entered October 4, 2017
      in the Court of Common Pleas of Columbia County Orphans' Court at
                        No(s): CP-19-DP-0000049-2015


BEFORE:      PANELLA, J., OLSON, J., and STEVENS, P.J.E. *

MEMORANDUM BY OLSON, J.:                                   FILED JUNE 04, 2018

       Appellant, E.J., (“Mother”), appeals from the order entered on October

4, 2017, granting the petition filed by the Columbia County Children and Youth

Services (“CYS” or the “Agency”), changing the permanency goal from

reunification to adoption for her dependent, male child, J.J. (“Child”) (born in

September 2015) with C.M. (“Father”), pursuant to the Juvenile Act, 42

Pa.C.S.A. § 6351. We vacate and remand.

       When Child was born in September 2015, Mother was a 17-year-old

adjudicated dependent, who was living in foster care.1         On September 14,

2015, the trial court held a hearing regarding whether to adjudicate Child


____________________________________________


1While the record does not provide an explanation for Mother’s dependency,
she states in her brief that it was based on her truancy from school. See
Mother’s Brief, at 10; 42 Pa.C.S.A. § 6302.
____________________________________
* Former Justice specially assigned to the Superior Court.
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dependent, at which Attorney John McDanel represented Child as his guardian

ad litem, (“GAL”). Attorney Michael D. Wintersteen, Mother’s GAL for her own

dependency proceedings, was present and represented Mother. At each of the

subsequent permanency review hearings pertaining to Child, both Mother and

Child, and their respective GALs were present. When Mother turned 18 years

old in June 2016, she signed herself out of care with the Agency and moved

out of the foster home, leaving Child in the care of the foster parents. Mother

had no legal counsel or GAL at that point in time. On July 29, 2016, G.J.,

Mother’s former stepmother who has since adopted Mother, filed a counseled

petition to intervene in Child’s dependency case. On August 29, 2016, the

trial court denied G.J.’s petition to intervene.

      In the meantime, on August 5, 2016, the Agency filed a petition for a

permanency review hearing, including the Permanency Plan (“PP”) dated July

20, 2016. On August 5, 2016, the trial court entered an order for permanency

review hearing, providing that the permanency review hearing would be held

on August 26, 2016. The order stated:

                                 TAKE NOTICE

       YOU SHOULD TAKE THIS PAPER TO AN ATTORNEY AT ONCE. IF
        YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE,
                         PLEASE CONTACT:

                                   TAMI KLINE

                             Court Administrator
                         Columbia County Court House




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      No request for appointment of pro bono counsel will be considered
      over the telephone. All requests must be made by using the
      proper form.

Order, 8/5/16 (emphasis in original). The record does not reflect that Mother

requested appointed counsel.

      On August 26, 2016, the trial court held a permanency review hearing,

at which Child and his GAL were present, and Mother appeared, pro se. Father

was not present, nor was he represented by counsel.        In the permanency

review order dated August 26, 2016 and entered on September 7, 2016, the

trial court found the continued placement of Child in the legal and physical

custody of the Agency in foster care was necessary and appropriate.       The

order noted that the visitation between Mother and Child was suspended in

February 2016 based on Mother’s wish to have Child adopted.

      On November 2, 2016, the Agency filed a petition for a permanency

review hearing, attaching a PP dated October 17, 2016. The record does not

reflect notice to the parties regarding the appointment of counsel.       On

November 18, 2016, the trial court held a hearing, at which Child and his GAL

were present, and Mother appeared, pro se. Father was not present, nor was

he represented by counsel. On December 1, 2016, the trial court entered a

permanency review order, directing Child’s continued placement in foster

care. The order noted that the visitation between Mother and Child would be

supervised at the Agency’s office or at other locations.




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     On February 3, 2017, the Agency filed a petition for a permanency

review hearing, which included a PP dated January 23, 2017. The record does

not reflect notice to the parties regarding the appointment of counsel.   On

February 27, 2017, the trial court held a permanency review hearing, at which

Child and his GAL were present, as was Mother, acting pro se. Father did not

attend, nor was he represented by counsel. In the permanency review order

entered on March 11, 2017, dated February 27, 2017, the trial court found

the continued placement of Child in the legal and physical custody of the

Agency in foster care was necessary and appropriate.

     On May 3, 2017, the Agency filed the petition to change Child’s

permanency goal to adoption. In addition, on May 5, 2017, the Agency filed

a petition for a permanency review hearing. Neither Agency petition included

notice regarding the parties’ right to counsel and/or any contact information

as to obtaining court-appointed counsel. In an order dated May 4, 2017 and

entered on May 5, 2017, the trial court scheduled the hearing on the goal

change petition to occur on July 31, 2017. The order provided the same notice

regarding requests for court-appointed counsel that was in the August 5, 2016

order. There is nothing in the record to establish that Mother requested the

appointment of counsel to represent her.

     On May 26, 2017, the trial court held a permanency review hearing, at

which Child and his GAL were present, as was Mother, acting pro se. Father

did not attend, nor was he represented by counsel. On May 31, 2017, the


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trial court entered a permanency review order, dated May 26, 2017. The trial

court found the continued placement of Child in the legal and physical custody

of the Agency in foster care was necessary and appropriate. The order noted

that the visitation between Mother and Child would be supervised at the

Agency’s office or at other locations. Moreover, the trial court found that Child

had been in placement for approximately 20 months.

      On August 3, 2017, the trial court entered an order re-scheduling the

hearing on the goal change petition from July 31, 2017 to October 2, 2017.

In the re-scheduling order, the trial court appointed Attorney Laura Pickle as

counsel for Mother, and Attorney Christine Luschas as counsel for Father.

      On August 7, 2017, the Agency filed a petition for a permanency review

hearing. The petition did not include a notice of the parties’ right to court-

appointed counsel. In separate orders dated August 9, 2017 and entered on

August 10, 2017, the court stated Attorney Laura Pickle was appointed counsel

for Mother, and Attorney Christine Luschas was appointed counsel for Father.

      On August 25, 2017, the trial court held a permanency review hearing.

Child and his GAL attended the hearing, as did Mother and Attorney Pickle.

Neither Father nor Attorney Luschas attended. On August 30, 2017, the trial

court entered a permanency review order, dated August 25, 2017, that

continued legal and physical custody of Child with the Agency in foster care.

The order noted that the visitation between Mother and Child would be

supervised at the Agency’s office or at other locations. Moreover, the trial


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court found that Child had been in placement for approximately 23 months.

Additionally, the order stated that the Child’s GAL concurred with the

recommendation of the Agency.

      The trial court held a hearing on the goal change petition on October 2,

2017. Child and his GAL were present at the hearing, as were Mother and

Attorney Pickle. Attorney Luschas appeared on behalf of Father, who was not

present.   At the hearing, the Agency presented the testimony of Elizabeth

Reams, the caseworker assigned to the case in December of 2015.           The

Agency also presented the testimony of Brittany Hacker, who became the

caseworker in November of 2016. Mother testified on her own behalf.

      Based on the testimonial and documentary evidence, the trial court set

forth the following factual findings and procedural history.

      1. Petitioner is Columbia County Children and Youth Services
      (“Agency”).

      2. Respondent [Mother], the natural mother of the child, is 19
      years old (DOB June [], 1998).

      3. The natural father of the child is [Father]. He has not had
      contact with the Agency since November 20, 2016, except for
      notice of the hearing in 2017. He does not oppose the goal change
      or adoption. He did not participate in the hearing. Counsel was
      appointed to represent him.

      4. [Child] was born [in September 2015].           Mother was a
      dependent child at that time, in foster care herself. A few days
      after the child was born, [C]hild and Mother were living in the
      foster home where they had been residing. The [A]gency had
      custody of both Mother and [C]hild. A few days later in September
      2015, they moved to another foster home where [Child] has lived
      continuously until the present time.


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     5. The Agency put a Service Plan and Permanency Plan in place
     on September 11, 2015. Per the plans, the parents’ goals were
     to take care of [Child], attend parenting classes, and address their
     mental health issues.

     6. In November 2015, Mother moved to another foster home, at
     her request, without [Child]. She indicated to the Agency that she
     wished to have [Child] adopted. She continued to visit with
     [Child] bi-weekly for a couple of months. In early, [sic] 2016, she
     stopped the visits and reiterated her desire for adoption. In March
     2016, Mother indicated that she might want to care for [Child].
     But again, in May 2016, she told the Agency that she preferred
     adoption.

     7. Mother continued to attend high school from her foster home
     and participated in a program that taught living skills for transition
     to independent living after high school. There was a minor
     parenting component to the classes. However, they were not
     parenting classes. [Child] was on an adoption track through
     November 2016.

     8. In November 2016, Mother decided that she wanted [Child]
     rather than have [Child] adopted. She has visited every other
     week ever since. The foster parents who have been parenting
     [Child] continue to be the sole source of support and nurture.

     9. When she turned [18] in June 2016, Mother signed out of care
     with the Agency and went to live with her mother. Through that
     time, she provided no care for [Child]. She had only visited every
     other Tuesday a few times.

     10. In November 2016, Mother moved in with her ex-
     stepmother[,] with whom she had a good relationship. She
     continues to live there.

     11. In April 2016, Mother was treated at the emergency room at
     Susquehanna Health in Williamsport for cutting herself. She was
     not admitted. The Agency recommended counselling and mobile
     services. When she signed out of care in June 2016, she indicated
     that she did not want to continue counselling.

     12. The Permanency Plan was revised in June 2016. It required
     Mother to cooperate with the agency; attend parenting classes;
     address her mental health issues; and assure care and safety of

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     [Child]. Through November 2016, except for the high school
     class[,] which had ended, she did not attend parenting classes.
     She did receive some counseling but stopped after June 2016.
     She did not care for [Child] at all, but she cooperated with the
     [A]gency.

     13. In June 2017, the Permanency Plan was updated with the
     same goals, and Mother reviewed it. Mother indicated that she
     was still living with her stepmother and stepmother’s boyfriend.
     She had a room set up for [Child] for his return and was expecting
     to have another child in October 2017. The [f]ather of that child
     was in the service based in Japan. He plans to be involved with
     that child, although there are possible plans for a paternity test.
     Mother had completed four parenting classes but had not
     completed the parenting course of [ten] classes.          She has
     transportation problems since she has no license and no car. As
     of June 2017, she graduated from high school. She is not
     receiving any mental health treatment. She testified that she is
     still depressed and looking into taking medication or getting
     treatment.

     14. Just prior to the present hearing, Mother’s stepmother and
     stepmother’s boyfriend (who may now be married) adopted
     Mother so that they would have standing in this case and possibly
     a custody case. Stepmother had petitioned to intervene in this
     case in July 2016. That petition was denied.

     15. Mother had an attorney appointed for her at the
     beginning of this case and during the case and for this
     hearing. She had also consulted with her stepmother with
     a private attorney during the case in 2016.

     16. In the foster home, [Child] has bonded with the foster parents
     who wish to adopt. [Child] is healthy and happy. [Child] has been
     with the foster parents since days after his birth.

     17. Mother has been in the presence of [Child] for less than 50
     hours since she left [Child] with the foster parents in November
     of 2015.

     18. Mother’s progress on her goals has been extraordinarily slow
     and incomplete. To date, she has not completed the mere [ten]
     hours of parenting classes. She is not receiving or seeking needed


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      mental health care. She has not [cared for], nor is she in a
      position to care for[, Child].

      19. By conduct continuing for a period of at least six months
      immediately preceding the filing of the petition and continuing to
      the present time, Mother has failed to perform parental duties or
      to be capable of being a custodial parent.

      20. The minor child has been removed from [Mother’s] care by
      the court for a period of at least two years at this point and [18]
      months at the time of the filing of the petition and the conditions
      that led to the removal and placement of [Child] continue to exist
      and Mother has not made substantial progress on meeting her
      goals.

      21. The services or assistance available to Mother are not likely to
      remedy the conditions which led to the removal or placement
      within a reasonable period.

      22. Father has not attempted to meet any goals set for him and
      has not had any meaningful contact at all with [Child].

      23. Adoption would be in [Child’s] best interests.

      24. The Children and Youth witnesses were credible.

Trial Court Opinion, 11/13/17, at 2-5 (emphasis added).

      On October 4, 2017, the trial court entered an order, changing the

permanency goal for Child from reunification to adoption. On October 6, 2017,

Mother filed a motion for reconsideration in the trial court. In an order entered

on October 9, 2017, the trial court denied reconsideration.

      On October 18, 2017, Mother timely filed a notice of appeal, but failed

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b). On October 19, 2017, the trial court directed

Mother to file a concise statement within 21 days. Mother timely complied,


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filing her concise statement on October 23, 2017. See In re K.T.E.L., 983

A.2d 745, 747 (Pa. Super. 2009) (“[T]here is no per se rule requiring quashal

or dismissal of a defective notice of appeal . . . .”). Cf. J.P. v. S.P., 991 A.2d

904 (Pa. Super. 2010) (appellant waived all issues by failing to timely comply

with the trial court’s direct order to file a concise statement).

        In her brief on appeal, Mother raises the following issues:

        1. Whether [M]other’s due process rights were violated when she
        was not advised she had the right to counsel until a Petition to
        Change Goal to Adoption was filed after approximately nineteen
        months of her child being in the custody of Columbia County
        Children and Youth[?]

        2. Whether the trial court abused its discretion when granting
        Agency’s Petition for Goal Change to Adoption when [M]other was
        herself, [sic] a seventeen[-]year[-]old dependent child who opted
        out of care and did not have the benefit of counsel until the goal
        change petition [for Child] was filed[?]

Mother’s Brief at 2.

        In her first issue, Mother asserts that, early in the dependency

proceedings involving Child, she was represented by her GAL in the

dependency case involving herself. Id. at 6. Mother states that, after she

was no longer a juvenile, the court did not advise her that she had a right to

a court-appointed attorney in the dependency matter involving Child for

several months, and it failed to appoint counsel for her until August 9, 2017.

Id. at 6.     Mother claims that she was without representation in Child’s

dependency case for over one year, from June 2016 until August 2017. Id.

at 7.    Mother asserts that the trial court, by failing to appoint counsel to


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represent her in Child’s dependency case, deprived her of due process of law.

Mother argues that, under the Juvenile Act, a party is entitled to

representation by legal counsel at all stages of any proceeding. Id. at 8, citing

42 Pa.C.S.A. § 6337.      Mother contends that, in dependency matters in

Pennsylvania, all parties have the right to representation by legal counsel, and

if a party does not have the financial means to hire an attorney, the court shall

appoint an attorney prior to the first court proceeding. Mother’s Brief at 8,

citing Pa.R.J.C.P. 1151(E).    In her second issue, Mother claims that the trial

court abused its discretion by finding that she did not make substantial efforts

in meeting her goals for reunification, despite testimonial evidence to the

contrary. Mother’s Brief at 6-7and 13-17.

      The Agency responds by arguing that the trial court properly determined

that Mother was afforded counsel and that she was not deprived of her

guarantee to due process, and that the court did not err or abuse its discretion

in granting the change of goal to adoption.      Child’s GAL concurs with the

Agency. Father’s counsel, Attorney Luschas states that, since Father failed to

communicate with her, she was unable to present a position for Father.

      The Pennsylvania Supreme Court set forth our standard of review in a

dependency case as follows.

      “The standard of review in dependency cases requires an appellate
      court to accept findings of fact and credibility determinations of
      the trial court if they are supported by the record, but does not
      require the appellate court to accept the lower court’s inferences
      or conclusions of law.” In re R.J.T., 9 A.3d 1179, 1190 (Pa.
      2010). We review for abuse of discretion[.]

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In Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).

      With regard to our review of a goal changes in a dependency case, this

Court recently set forth the following:

         In cases involving a court’s order changing the [court-
         ordered] goal . . . to adoption, our standard of review is
         abuse of discretion. To hold that the trial court abused its
         discretion, we must determine its judgment was manifestly
         unreasonable, that the court disregarded the law, or that
         its action was a result of partiality, prejudice, bias or ill will.
         While this Court is bound by the facts determined in the
         trial court, we are not tied to the court’s inferences,
         deductions and conclusions; we have a responsibility to
         ensure that the record represents a comprehensive inquiry
         and that the hearing judge has applied the appropriate
         principles to that record. Therefore, our scope of review is
         broad.

      In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008) (citations
      omitted); see also In re R.J.T., 9 A.3d [at 1190].

      In In re A.K., 936 A.2d 528, 534 (Pa. Super. 2007), this Court
      stressed that the focus of dependency proceedings is upon the
      best interest of the children and that those considerations
      supersede all other concerns, “including the conduct and the rights
      of the parent.” Again, in In the Interest of D.P., 972 A.2d 1221,
      1227 (Pa. Super. 2009), we explained, “In a change of goal
      proceeding, the best interests of the child, and not the interests
      of the parent, must guide the trial court, and the parent will
      summon the ability to handle the responsibilities of parenting.”
      In re N.C., 909 A.2d 818, 824 (Pa. Super. 2006) (quoting In re
      Adoption of M.E.P., 825 A.2d 1226, 1276 (Pa. Super. 2003)).

      With those principles in mind, we outline the relevant
      considerations set forth in the Juvenile Act regarding permanency
      planning:

         Pursuant to § 6351(f)[] of the Juvenile Act, when
         considering a petition for a goal change for a dependent
         child, the juvenile court is to consider, inter alia: (1) the
         continuing necessity for and appropriateness of the
         placement; (2) the extent of compliance with the family

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            service plan; (3) the extent of progress made towards
            alleviating the circumstances which necessitated the
            original placement; (4) the appropriateness and feasibility
            of the current placement goal for the children; (5) a likely
            date by which the goal for the child might be achieved; (6)
            the child’s safety; and (7) whether the child has been in
            placement for at least fifteen of the last twenty-two
            months.

         In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011).
         Additionally, courts must consider whether reasonable efforts
         were made to finalize the permanency plan in effect. See 42
         Pa.C.S.A. § 6351(f)(5.1).

In the Interest of L.T., 158 A.3d 1266, 1276-1277 (Pa. Super. 2017)

(footnote omitted).

         Regarding the disposition of a dependent child, section 6351(e), (f),

(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for

its permanency plan for the subject child. Pursuant to those subsections of

the Juvenile Act, the trial court is to determine the disposition that is best

suited to the safety, protection and physical, mental and moral welfare of the

child.

         Regarding procedural due process, this Court has stated: “Due process

requires nothing more than adequate notice, an opportunity to be heard, and

the chance to defend oneself in an impartial tribunal having jurisdiction over

the matter.” In re J.N.F., 887 A.2d 775, 781 (Pa. Super. 2005). “Due process

is flexible and calls for such procedural protections as the situation demands.”

In re Adoption of Dale A., II, 683 A.2d 297, 300 (Pa. Super. 1996), citing




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Mathews v. Eldridge, 424 U.S. 319 (1976).             Regarding substantive due

process, this Court has stated:

       [I]n a dependency case, the liberty interest of [a parent] is not
      at stake and the risk of erroneous adjudication is so substantially
      mitigated by safeguards, reviews, and procedures directed toward
      uniting the family, that due process requires a less didactic
      approach than in criminal procedures. And, while a dependency
      proceeding is adversarial in the sense that it places the state in
      opposition to the parent with respect to the custody of the child .
      . . it does not implicate the liberty interests of the parent or the
      child as would be the case of a defendant in a criminal action.

In re M.B., 869 A.2d 542, 546-547 (Pa. Super. 2005) (internal citations and

quotation marks omitted).          The due process protections afforded in a

dependency proceeding, therefore, are not as comprehensive as in a criminal

trial. Id.

      In its Rule 1925(a) opinion, the trial court considered Mother’s two

issues on appeal together, stating as follows:

      The first issue raised by Mother is that she was denied [her] right
      to counsel. This argument is incorrect and specious. At the
      beginning of the case, Mother was appointed her own attorney.
      (Tr. p. 66). She had an attorney through at least November 2016
      (Tr. 76). She and her stepmother were in touch with a private
      attorney in the summer at least of 2016. She had an attorney for
      this hearing. She was not deprived of her right to counsel in any
      way.

      Second, Mother alleges abuse of discretion in finding that she did
      not make substantial progress in achieving her goals for
      reunification.

             “If the child has been in placement for at least 15 of the
             last 22 months or the court has determined that
             aggravated circumstances exist and that reasonable efforts
             to prevent or eliminate the need to remove the child from
             the child’s parent, guardian or custodian or to preserve and

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        reunify the family need not be made or continue to be
        made, whether the county agency has filed or sought to
        join a petition to terminate parental rights and to identify,
        recruit, process and approve a qualified family to adopt the
        child. . . .”

     42 Pa.C.S. § 6351[.]

     There is no termination petition filed. However, there is an
     approved adoptive family, ready and willing to adopt. Mother and
     Father have made no substantial progress to achieve the goals of
     returning [Child] to Mother. The agency has tried for two years
     to have Mother take parenting classes, obtain mental health
     treatment, and be able to take care of [Child]. Minimal progress
     has been made. Mother is young, but [Child’s] best interest is the
     real concern. Father has in fact abandoned this case.

        Parental duty requires that the parent act affirmatively
        with good faith interest and effort, and not yield to every
        problem, in order to maintain the parent-child relationship
        to the best of his or her ability, even in difficult
        circumstances.     A parent must utilize all available
        resources to preserve the parental relationship, and must
        exercise reasonable firmness in resisting obstacles placed
        in the path of maintaining the parent-child relationship.
        Parental rights are not preserved by waiting for a more
        suitable or convenient time to perform one’s parental
        responsibilities while others provide the child with his or
        her physical and emotional needs.

     In re B., N.M. Appeal of B.L., supra (citations omitted). See
     also, In re: E.M., 908 A.2d 297 (Pa. Super. 2006).

     A parent is required to exert herself in maintaining contact and
     exercise firmness in maintaining a relationship even in difficult
     circumstances. In Re: E.M., 908 A.2d 297 (Pa.Super.2006).

     In this case, Mother’s involvement with [Child] has been minimal.
     For over a year, [Child] was on track to be adopted by foster
     parents with whom he has now bonded. Mother has visited [Child]
     in a supervised setting for fewer than [50] hours - about two days
     - in two years. She has not completed parenting classes. She
     has not addressed her mental health issues.            She has not
     established her ability in the least to care for [Child]. This court

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      stated its thoughts on the record after the hearing in this matter,
      albeit not terrifically artfully, but to the point. See Tr. pp. 104-
      107.

      In summary, Mother has not made substantial progress in
      achieving the reunifications goals, and there is no indication that
      she will address these issues and or achieve these goals anytime
      soon. In the meantime, [Child] is growing and maturing in a well-
      adjusted home, the only home he has known, where he has been
      raised for over two years.

Trial Court Opinion, 11/13/17, at 5-7.

      The Juvenile Act provides that a parent of the subject child in a

dependency case has a right to counsel, as does the subject child. The statute

regarding the right of a parent to counsel follows:

      § 6337. Right to counsel

      . . . [A] party is entitled to representation by legal counsel at all
      stages of any proceedings under this chapter [chapter 63] and if
      he is without financial resources or otherwise unable to employ
      counsel, to have the court provide counsel for him. If a party
      other than a child appears at a hearing without counsel the court
      shall ascertain whether he knows of his right thereto and to be
      provided with counsel by the court if applicable. The court may
      continue the proceeding to enable a party to obtain counsel.
      Except as provided under section 6337.1 (relating to right to
      counsel for children in dependency and delinquency proceedings),
      counsel must be provided for a child. If the interests of two or
      more parties may conflict, separate counsel shall be provided for
      each of them.

42 Pa.C.S.A. § 6337.

      The statute regarding the right of the child in a dependency proceeding

to counsel follows:

      § 6337.1 . Right to counsel for children in dependency and
      delinquency proceedings


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      (a) Children in dependency proceedings.—Legal counsel shall
      be provided for child who is alleged or has been found to be a
      dependent child in accordance with the Pennsylvania Rules of
      Juvenile Court Procedure.

42 Pa.C.S.A. § 6337.1.

      The Pennsylvania Rules of Juvenile Court Procedure govern the

appointment of counsel in dependency proceedings. Rule 1151(E) provides

that a trial court must inform an unrepresented parent of his or her right to

counsel prior to any dependency proceeding and, if a party does not have the

financial means to retain a private attorney, the court shall appoint one for

her prior to the first proceeding.

      E. Counsel for other parties. If counsel does not enter an
      appearance for a party, the court shall inform the party of the
      right to counsel prior to any proceeding. If counsel is requested
      by a party in any case, the court shall assign counsel for the party
      if the party is without financial resources or otherwise unable to
      employ counsel. Counsel shall be appointed prior to the first court
      proceeding.

Pa.R.J.C.P. 1151(E).

      The comment to Rule 1151 states as follows:

      Pursuant to paragraph (E), the court is to inform all parties of the
      right to counsel if they appear at a hearing without counsel. If a
      party is without financial resources or otherwise unable to employ
      counsel, the court is to appoint counsel prior to the proceeding.
      Because of the nature of the proceedings, it is extremely
      important that every “guardian” has an attorney. Therefore, the
      court is to encourage the child’s guardian to obtain counsel.
      Pursuant to Rule 1120, a guardian is any parent, custodian, or
      other person who has legal custody of a child, or person
      designated by the court to be a temporary guardian for purposes
      of a proceeding. See Pa.R.J.C.P. 1120.

Pa.R.J.C.P. 1151, Comment.


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       Rule 1152 provides that a child or other party may only waive his or her

right to counsel if the trial court conducts an on-the-record colloquy, stating

as follows:

       A. Children.

           (1) Guardian ad litem. A child may not waive the right to
           a guardian ad litem.

           (2) Legal Counsel. A child may waive legal counsel if:

              (a) the waiver is knowingly,         intelligently,   and
              voluntarily made; and

              (b) the court conducts a colloquy with the child on the
              record.

       B. Other parties. Except as provided in paragraph (A), a party
       may waive the right to counsel if:

           (1) the waiver is knowingly, intelligently, and voluntarily
           made; and

           (2) the court conducts a colloquy with the party on the
           record.

       C. Stand-by counsel. The court may assign stand-by counsel if
       a party waives counsel at any proceeding or stage of a proceeding.

       D. Notice and revocation of waiver. If a party waives counsel
       for any proceeding, the waiver only applies to that proceeding,
       and the party may revoke the waiver of counsel at any time. At
       any subsequent proceeding, the party shall be informed of the
       right to counsel.

Pa.R.J.C.P. 1152.2

____________________________________________


2The comment to Rule 1152 provides a list of questions that trial courts should
ask to ascertain whether a parent’s waiver of counsel is knowing, intelligent,
and voluntary. See Pa.R.J.C.P. 1152, Comment.


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     Section 6311 of the Juvenile Act provides for the appointment of a GAL

for the subject child in dependency proceedings, as follows:

     § 6311. Guardian ad litem for child in court proceedings.

     (a) Appointment.--When a proceeding, including a master’s
     hearing, has been initiated alleging that the child is a dependent
     child under paragraph (1), (2), (3), (4) or (10) of the definition of
     “dependent child” in section 6302 (relating to definitions), the
     court shall appoint a guardian ad litem to represent the legal
     interests and the best interests of the child. The guardian ad litem
     must be an attorney at law.

     (b) Powers and duties.--The guardian ad litem shall be
     charged with representation of the legal interests and the best
     interests of the child at every stage of the proceedings and shall
     do all of the following:

         (1) Meet with the child as soon as possible following
         appointment pursuant to section 6337 (relating to right to
         counsel) and on a regular basis thereafter in a manner
         appropriate to the child’s age and maturity.

         (2) On a timely basis, be given access to relevant court
         and county agency records, reports of examination of the
         parents or other custodian of the child pursuant to this
         chapter and medical, psychological and school records.

         (3) Participate in all proceedings, including hearings
         before masters, and administrative hearings and reviews
         to the degree necessary to adequately represent the child.

         (4) Conduct such further investigation necessary to
         ascertain the facts.

         (5) Interview potential witnesses, including the child’s
         parents, caretakers and foster parents, examine and cross-
         examine witnesses and present witnesses and evidence
         necessary to protect the best interests of the child.

         (6) At the earliest possible date, be advised by the county
         agency having legal custody of the child of:


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J-A07024-18


              (i) any plan to relocate the child or modify custody
              or visitation arrangements, including the reasons
              therefor, prior to the relocation or change in
              custody or visitation; and

              (ii) any proceeding, investigation or hearing under
              23 Pa.C.S. Ch. 63 (relating to child protective
              services) or this chapter directly affecting the child.

      (7) Make specific recommendations to the court relating to the
      appropriateness and safety of the child’s placement and services
      necessary to address the child's needs and safety.

      (8) Explain the proceedings to the child to the extent appropriate
      given the child’s age, mental condition and emotional condition.

      (9) Advise the court of the child’s wishes to the extent that they
      can be ascertained and present to the court whatever evidence
      exists to support the child’s wishes. When appropriate because of
      the age or mental and emotional condition of the child, determine
      to the fullest extent possible the wishes of the child and
      communicate this information to the court. A difference between
      the child’s wishes under this paragraph and the recommendations
      under paragraph (7) shall not be considered a conflict of interest
      for the guardian ad litem.

42 Pa.C.S.A. § 6311 (emphasis added).

      The Pennsylvania Juvenile Court Procedure Rule 1154 provides the

duties of the GAL as follows:

      Rule 1154. Duties of Guardian Ad Litem

      A guardian ad litem shall:

      (1) Meet with the child as soon as possible following assignment
      pursuant to Rule 1151 and on a regular basis thereafter in a
      manner appropriate to the child’s age and maturity;

                                 ***
      (7) Make any specific recommendations to the court relating to
      the appropriateness and safety of the child's placement and


                                      - 20 -
J-A07024-18


      services necessary to address the child's needs and safety,
      including the child’s educational, health care, and disability needs;

      (8) Explain the proceedings to the child to the extent appropriate
      given the child’s age, mental condition, and emotional condition;
      and

      (9) Advise the court of the child’s wishes to the extent that they
      can be ascertained and present to the court whatever evidence
      exists to support the child’s wishes. When appropriate because of
      the age or mental and emotional condition of the child, determine
      to the fullest extent possible the wishes of the child and
      communicate this information to the court.

            Comment: If there is a conflict of interest between the
      duties of the guardian ad litem pursuant to paragraphs (7) and
      (9), the guardian ad litem for the child may move the court for
      appointment as legal counsel and assignment of a separate
      guardian ad litem when, for example, the information that the
      guardian ad litem possesses gives rise to the conflict and can be
      used to the detriment of the child. If there is not a conflict of
      interest, the guardian ad litem represents the legal interests and
      best interests of the child at every stage of the proceedings. 42
      Pa.C.S. § 6311(b). To the extent 42 Pa.C.S. § 6311(b)(9) is
      inconsistent with this rule, it is suspended. See Rules 1151 and
      1800. See also Pa.R.P.C. 1.7 and 1.8.

      “Legal interests” denotes that an attorney is to express the child’s
      wishes to the court regardless of whether the attorney agrees with
      the child’s recommendation. “Best interests” denotes that a
      guardian ad litem is to express what the guardian ad litem
      believes is best for the child’s care, protection, safety, and
      wholesome physical and mental development regardless of
      whether the child agrees.

Pa.R.J.C.P. 1154 and comment.

      Recently, our Supreme Court, in In re Adoption of L.B.M., 161 A.3d

172 (Pa. 2017) (plurality), held that section 2313(a) of the Adoption Act,

pertaining to the involuntary termination of parental rights, requires the trial

court to appoint counsel to represent the legal interests of any child involved

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J-A07024-18


in a contested involuntary termination proceeding.           See 23 Pa.C.S.A.

§ 2313(a). The Court defined a child’s legal interest as synonymous with his

or her preferred outcome.     The L.B.M. Court did not overrule this Court’s

holding in In re K.M., 53 A.3d 781 (Pa. Super. 2012), in which we held that

a GAL who is an attorney may act as counsel pursuant to section 2313(a) as

long as the dual roles do not create a conflict between the child’s best interest

and legal interest.

      In the opinion announcing the judgment of the Court, Justice Wecht

stated the following:

      In dependency cases where the trial court is required to appoint a
      GAL, the GAL must be an attorney. 42 Pa.C.S. § 6311(a). The
      GAL is authorized by statute to represent both the child’s legal
      interests and the child’s best interests. Id. The GAL makes
      recommendations to the court regarding the child’s placement and
      needs, and must advise the court of the child’s wishes, if
      ascertainable. 42 Pa.C.S. § 6311(b). Further, the statute
      explicitly provides that any difference between the child’s wishes
      and the GAL’s recommendations “shall not be considered a conflict
      of interest.” 42 Pa.C.S. § 6311(b)(9).4
      ___________________________________________________

      4
        Although Section 6311(b)(9) specifically provides that the
      dependency GAL has no conflict of interest when the child’s best
      interests and legal interests diverge, this Court has suggested
      that, in such a instances, the GAL should request appointment of
      legal counsel. Pa.R.J.C.P. 1154 cmt. Indeed, we have suspended
      Section 6311(b)(9) to the extent that it conflicts with the rule. Id.
      cmt.

In re Adoption of L.B.M., 161 A.2d at 175 (footnote in original).

      The permanency review hearing held on August 26, 2016 was the first

juvenile dependency proceeding involving Child as the subject dependent child


                                     - 22 -
J-A07024-18


after Mother was no longer dependent and no longer had her court-appointed

GAL. The Agency’s petition for a permanency review hearing filed on August

5, 2016, included a notice to the parties regarding the right to counsel. The

trial court’s scheduling order, entered on that same date, gave notice to the

parties concerning the right to appointed counsel. There is nothing in the

record that indicates Mother contacted the court to request appointed counsel.

There is, likewise, nothing in the record that would establish that the trial

court complied with the mandates of section 6337 of the Juvenile Act and

Pa.R.J.C.P. 1151(E) in ascertaining whether Mother understood her right, as

a party-parent, to have appointed counsel, and desired to waive her right to

appointed counsel.3 The Agency’s goal change petition filed on May 3, 2017

did not include a notice to the parties regarding the right to counsel. The trial

court’s May 4, 2017 scheduling order provided notice to Mother of her right to

counsel; however, there is nothing in the record to demonstrate whether

Mother requested counsel. The trial court did not appoint counsel to represent

Mother until its August 3, 2017 order re-scheduling the hearing on the goal

change petition.




____________________________________________


3 In this respect, the procedural posture of the instant case differs from that
in In re Adoption of J.N.F., 887 A.2d at 778, in which a father, who was
incarcerated at the time, was not present at the termination hearing, nor was
he represented by counsel. In J.N.F., the father failed to respond to the notice
in the termination petition informing him of his right to counsel. A panel of
this Court ruled that the father had waived his right to counsel.

                                          - 23 -
J-A07024-18


      As an explanation for its failure to appoint counsel for Mother, the trial

court stated, “Mother had an attorney appointed for her at the beginning of

this case and during the case and for this hearing. She had also consulted

with her stepmother with a private attorney during the case in 2016. . . .”

This explanation does not comport with the requirements of section 6337 of

the Juvenile Act and Rule 1151(E) of the Pa.R.J.C.P.       In the dependency

proceedings regarding Child, after Mother was no longer a dependent child

herself, she was no longer represented by her GAL, Attorney Wintersteen.

Mother was not represented by counsel at four of the five permanency review

hearings involving Child spanning a 14-month period. She appeared at those

hearings pro se. The undisputed fact that Mother’s former stepmother, now

her adoptive mother, had consulted with a private attorney in 2016 does not

obviate the need to comply with the provisions of section 6337 and Rule

1151(E) regarding appointment of counsel for Mother.           After the court

appointed Attorney Pickle to represent Mother on August 3, 2017, Mother

accepted the representation.     Attorney Pickle appeared and represented

Mother at the permanency review hearing on August 25, 2017, and at the goal

change hearing on October 2, 2017.

      Further, Mother argues that, while she was still a dependent child, she

never had a court-appointed legal counsel, separate from her own GAL,

Attorney Wintersteen, in Child’s dependency proceedings. See Mother’s Brief

at 8-11. Mother contends that the trial court did not appreciate the potential


                                    - 24 -
J-A07024-18


conflict of interest presented by her GAL from her own dependency

proceedings, Attorney Wintersteen,        advising   her   with regard to      the

dependency proceedings in which her son was the subject. Id. As Mother’s

dependency proceedings concluded in June of 2016, we may not address

whether the attorney appointed to represent her as a GAL in her own

dependency proceedings had a conflict of interest in representing her with

regard to Child’s dependency proceedings. As the trial court failed to comply

with the mandates of section 6337 of the Juvenile Act and Pa.R.J.C.P. 1151(E)

by failing to appoint counsel for Mother as a party to the juvenile dependency

proceedings involving Child after she was no longer represented by Attorney

Wintersteen, and the court failed to ascertain whether she desired appointed

counsel or was waiving her right to appointed counsel, we must vacate the

order changing Child’s permanency goal to adoption, and remand the matter

to the trial court for further juvenile dependency proceedings regarding Child.

If Attorney Pickle is no longer able to represent Mother in the dependency

proceedings, then new counsel must be appointed for Mother unless Mother

knowingly intelligently and voluntarily waives her right to counsel.

      Accordingly,   we   vacate   the   trial   court   order   changing   Child’s

permanency goal to adoption, and we remand the matter for further juvenile

dependency proceedings involving Child in the trial court.

      Order vacated. Appeal remanded to the trial court for further juvenile

dependency proceedings regarding Child. Jurisdiction relinquished.


                                    - 25 -
J-A07024-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/04/2018




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