J-S53016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: A.L.M.F., A         :   IN THE SUPERIOR COURT OF
 MINOR                                   :        PENNSYLVANIA
                                         :
                                         :
 APPEAL OF: S.P., MOTHER                 :
                                         :
                                         :
                                         :
                                         :   No. 741 EDA 2017

             Appeal from the Decree Entered January 27, 2017
    In the Court of Common Pleas of Philadelphia County Family Court at
                      No(s): CP-51-AP-0000916-2015,
                          CP-51-DP-0000356-2014

 IN THE INTEREST OF: S.B.K.P., A         :   IN THE SUPERIOR COURT OF
 MINOR                                   :        PENNSYLVANIA
                                         :
                                         :
 APPEAL OF: S.P., MOTHER                 :
                                         :
                                         :
                                         :
                                         :   No. 743 EDA 2017

             Appeal from the Decree Entered January 27, 2017
    In the Court of Common Pleas of Philadelphia County Family Court at
                      No(s): CP-51-AP-0000917-2015,
                          CP-51-DP-0000357-2014


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 10, 2018

      In these consolidated appeals, S.P. (“Mother”) appeals from the January

27, 2017 decrees terminating her parental rights to her children, S.B.K.P.

(“Child 1”), a son born in April of 2011, and A.L.M.F. (“Child 2”), a daughter

born in September of 2009 (collectively “Children”), and from the orders dated
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the same date changing Children’s permanency goal to adoption. 1,      2   Upon

careful review, we vacate and remand.

        On November 12, 2013, the Philadelphia Department of Human Services

(“DHS”) received a General Protective Services (“GPS”) report alleging that

Children did not have stable housing and Mother abused drugs. Petitioner’s

Exhibit 3. After an investigation, DHS determined that the report was valid.

Id.     DHS enlisted the services of Community Umbrella Agency (“CUA”)

Asociacion Puertorriquenos en Marcha (“APM”) to provide in-home services to

Mother and Children, however APM could not locate Mother in order to

implement those services until January of 2014.

        On January 31, 2014, APM located Mother at the Appletree Family

Shelter. Mother indicated that she had been residing with a friend until they

had a disagreement, after which Mother moved to the shelter. APM placed

Children with Maternal Aunt, who agreed to care for Children while Mother

secured stable housing. On February 7, 2014, DHS received a Child Protective

Services (“CPS”) report that Mother had abandoned Children with Maternal

Aunt and that Child 2 was in need of medical attention. DHS filed a petition

for order of protective custody, which the trial court granted, and Children
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1Child 1’s father, K.T. (“Father 1”), terminated his parental rights by consent.
The trial court also entered a separate decree involuntarily terminating the
parental rights of Child 1’s unknown father, Child 2’s father, W.F. (“Father 2”)
and Child 2’s unknown father. Father 1, Father 2 and all unknown fathers did
not file a brief in connection with this appeal, nor did they file a separate
appeal.

2   Mother has a third child born in June 2003.

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entered temporary DHS custody. Children remained in DHS custody pursuant

to a shelter care order entered on February 10, 2014, and the trial court

adjudicated Children dependent on March 21, 2014.

      On December 24, 2015, DHS filed petitions to terminate involuntarily

Mother’s parental rights to Children and change Children’s permanency goal

to adoption. DHS amended the petitions on January 10, 2017. On January

27, 2017, the trial court held a hearing on the petitions. At the conclusion of

the hearing, the trial court orally delivered its decree involuntarily terminating

Mother’s parental rights and changing Children’s permanency goal to

adoption. The trial court entered its decree on that same date. On February

27, 2017, Mother timely filed a notice of appeal and concise statement of

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

      Mother now raises the following issues for our review.

      1. Did [DHS] sustain its burden that Mother’s rights should be
         terminated when there was evidence that Mother had
         completed and/or had been actively completing her
         permanency goals?

      2. Was there [] sufficient evidence presented to establish that it
         was in the best interests of the children to terminate Mother’s
         parental rights?

      3. Did the trial court fully consider all the necessary factors
         pursuant to the Pennsylvania Juvenile Act, specifically [42]
         Pa[.]C[.]S[.]A[.] § 6351 (e) & (f), in its determination that the
         goal of adoption is in the children’s best interest?




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Mother’s Brief at 4 (trial court answers omitted).3 Mother’s brief also contends

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

(Pa. 2017) requires that we vacate the trial court’s order and remand the case

for the appointment of separate counsel for Children and to conduct a “de

novo review of the appropriateness of the permanency goal and termination.”

Mother’s Brief at 21.

        Before we reach the merits of Mother’s enumerated issues, we must

consider whether Children were adequately represented by legal counsel at

the termination hearing.4 In L.B.M., our Supreme Court held that trial courts

must appoint counsel to represent the legal interests of any child involved in

a contested termination proceeding pursuant to 23 Pa.C.S.A. § 2313(a).5 See
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3 Mother framed her enumerated issues somewhat differently in her concise
statement, but they were sufficiently preserved for our review.

4 This Court has held that the failure to appoint statutorily-required legal
counsel for children must be raised sua sponte. In re K.J.H., 180 A.3d 411
(Pa. Super. 2018). We need not do so in this case as Mother raised the issue
in her appellate brief.

5   Section 2313(a) provides as follows.

        (a)   Child.―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.




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In re Adoption of L.B.M., 161 A.3d at 183. The L.B.M. Court explained that

a child’s legal interests are distinct from his or her best interests, in that a

child’s legal interests are synonymous with the child’s preferred outcome,

while a child’s best interests must be determined by the court. Id. at 174.

While our Supreme Court held in L.B.M. that courts must appoint counsel, the

justices disagreed on whether the role of counsel may be fulfilled by a child’s

existing dependency guardian ad litem (“GAL”) where a child’s legal and best

interests do not diverge. See id. at 183. In addition, although the Court, in

L.B.M., held that the failure to appoint legal interest counsel in a contested

termination case constituted structural error that was not subject to harmless

error analysis, it was unclear whether such an omission was subject to waiver

principles.6

       Recently, our Supreme Court issued an opinion that clarified many of

the issues raised in L.B.M. See In re T.S., 2018 WL 4001825 (Pa. 2018).

Specifically, the Court in T.S. held that the issue of whether the trial court

erred in failing to appoint separate legal interest counsel was non-waivable.

See id. at *5. In addition, a guardian ad litem who represents a child’s best

interests can also represent the legal interests of the child in a contested

termination proceeding so long as the child's legal and best interests do not
____________________________________________


23 Pa.C.S.A. § 2313(a).

6 The mother in L.B.M. raised the child’s right to legal interest counsel before
the trial court. Here, the issue was not raised before the trial court but was
first raised by Mother in her brief filed with this Court.


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diverge.        See     id.    at     *6    and     10     (“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”).

      Finally, this Court has examined the requirements for adequate

representation of a child’s legal interests in the context of contested

termination proceedings. In In re Adoption of T.M.L.M., 184 A.3d 585 (Pa.

Super. 2018), we stated 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 [his m]other. [T.M.L.M.] may be unable to articulate a clear
      position or have mixed feelings about the matter. Furthermore,
      termination of [his m]other'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).

      Based upon the record before us, there is no indication that legal interest

counsel was ever appointed or that Children have been interviewed to

determine whether they possess the capacity to verbalize a preferred




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outcome.7     As such, no one has, as yet, ascertained whether there was a

conflict between Children’s best and legal interests.      Therefore, the record

does not substantiate that Children’s statutory right to legal counsel was

observed.       Hence, we are constrained to vacate the order terminating

Mother’s parental rights without prejudice. On remand, the trial court shall

appoint legal interest counsel for Children. Counsel shall review the entire

record from the prior proceedings and appropriately consult with Children for

the purpose of ascertaining Children’s subjective preferences.         Thereafter,

legal interest counsel shall notify the trial court whether the result of the prior

proceedings was consistent with Children’s legal interests or whether counsel

believes a new hearing is necessary to advocate a separate preferred outcome

or placement for Children. 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 Children with an opportunity to advance legal interests that differ

from their best interests.         Id.    If, however, a new hearing is deemed

unwarranted, the trial court may re-enter the original decrees terminating

Mother’s parental rights.



____________________________________________


7 Children are presently seven and nine years of age and clearly not too young
to have formed a subjective, articulable preference that can be advanced by
counsel during the termination proceedings. In T.S., the Supreme 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.” In re T.S., 2018 WL
4001825 at *7 n.17, citing Pa.R.P.C. 1.14, Explanatory Comment 1.

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     Decrees vacated without prejudice.     Case remanded for additional

proceedings consistent with this memorandum. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/18




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