J-S67031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: T.Z.W.T., A        :    IN THE SUPERIOR COURT OF
MINOR                                  :          PENNSYLVANIA
                                       :
                                       :
APPEAL OF: S.T.W., MOTHER              :         No. 914 EDA 2017

                   Appeal from the Order March 7, 2017
           In the Court of Common Pleas of Philadelphia County
             Family Court at No(s): CP-51-AP-0000437-2016,
                         CP-51-DP-0002518-2014

IN THE INTEREST OF: T.Q.K.W.T., A      :    IN THE SUPERIOR COURT OF
MINOR                                  :          PENNSYLVANIA
                                       :
                                       :
APPEAL OF: S.T.W., MOTHER              :         No. 915 EDA 2017

                   Appeal from the Order March 7, 2017
           In the Court of Common Pleas of Philadelphia County
             Family Court at No(s): CP-51-AP-0000438-2016,
                         CP-51-DP-0002521-2014

IN THE INTEREST OF: T.Q.T.W., A        :    IN THE SUPERIOR COURT OF
MINOR                                  :          PENNSYLVANIA
                                       :
                                       :
APPEAL OF: S.T.W., MOTHER              :         No. 916 EDA 2017

                   Appeal from the Order March 7, 2017
           In the Court of Common Pleas of Philadelphia County
             Family Court at No(s): CP-51-AP-0000439-2016,
                         CP-51-DP-0002520-2014


BEFORE:   GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                       FILED APRIL 12, 2019

     In these consolidated appeals, Appellant, S.T.W. (“Mother”) challenges

the orders entered in the Philadelphia County Court of Common Pleas,

Family Court, which terminated her parental rights to her three children,


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67031-17


T.Z.W.T. (born in August 2014), T.Q.K.W.T. (born in August 2011) and

T.Q.T.W. (born in April 2013). We affirm the court’s orders as to T.Z.W.T.

and T.Q.T.W. We also affirm the court’s decision under Section 2511(a) and

(b) with respect to T.Q.K.W.T., but we must vacate that termination order

and remand for appointment of counsel under 23 Pa.C.S.A. § 2313(a), and

for further evaluation and reconsideration of that termination order under

current    prevailing     law,     without     prejudice   to   reinstate   it   after

reconsideration.1

       The trial court accurately set forth the relevant facts and procedural

history of this case as follows:

          In 2014, the family became known to the Department of
          Human Services (“DHS”) pursuant to a General Protective
          Services (“GPS”) report which alleged that Children resided
          in an abandoned house with Mother and her paramour. It
          was also alleged that [infant] Child, T.Z.W.T., was
          hospitalized at St. Christopher’s Children’s Hospital due to
          a blood infection caused by environmental problems in the
          abandoned house. On October 24, 2014, T.Z.W.T. was
          discharged from St. Christopher’s Hospital…and T.Z.W.T.
          was required to have a gastrostomy tube for six months.
          Mother had previously been diagnosed with bipolar
          disorder and was not receiving treatment.
____________________________________________


1 Disposition of this case was delayed because Mother raised an issue on
appeal, concerning the appointment of legal counsel for Children, that was
pending before this Court en banc in a case recently decided on December
10, 2018. See In re K.R., 200 A.3d 969 (Pa.Super. 2018) (en banc). We
were also awaiting our Supreme Court’s decision in the case of In re T.S.,
___ Pa. ___, 192 A.3d 1080 (2018), cert. denied, ___ U.S. ___, ___ S.Ct.
___, 2019 WL 659981 (Feb. 19, 2019). Since those decisions, the law in
this area has evolved and changed, depending on the circumstances of each
case.



                                           -2-
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          On the day of Child T.Z.W.T.’s release from the hospital,
          October 24, 201[4], DHS obtained an Order of Protective
          Custody (“OPC”) for the Children. [On October 27, 2014,
          the court appointed the Defender Association of
          Philadelphia, Child Advocacy Unit, to serve as counsel and
          guardian ad litem (“GAL”) for Children. Additionally, DHS
          placed T.Z.W.T. and T.Q.T.W. with their Maternal
          Grandmother, and T.Q.K.W.T. with his Maternal Aunt.] On
          November 7, 2014, Children were adjudicated dependent
          and committed and placed in the DHS foster care.[2] On
          January 13, 2015, the Community Umbrella Agency
          (“CUA”) held the initial Single Case Plan (“SCP”) meeting.
          The goal for the family was reunification. The objectives
          identified for Mother were (1) to stabilize her mental
          health; (2) to complete intake at the Wedge Medical
          Center (“Wedge”); (3) to improve parenting/coping skills;
          (4) to continue to actively participate in all parenting,
          anger management counseling sessions; (5) to maintain
          her relationship with Children; (6) to attend her scheduled
          visits with Children; (7) to maintain safe and stable
          housing; (8) to enroll in the Achieving Reunification Center
          (“ARC”).

          On January 15, 2016, Dr. William Russell conducted a
          parenting capacity evaluation of Mother. On January 26,
          2015, Mother participated in a psychological evaluation
          conducted by Genevieve Chaney, PsyD and Timothy
          Overton, BA. Pursuant to this Psychological Evaluation,
          Dr. Chaney opined that Mother suffered from a mild
          intellectual disability and borderline personality.   Dr.
          Chaney recommended that Mother (1) receive a
          psychiatric exam; (2) Mother be referred to Philadelphia’s
          Disability Services to determine if she was eligible for
          services; (3) Mother should comply with DHS services; (4)
          Mother should receive a parenting evaluation; (5) Mother
          should be explained things slowly and in writing.

          On [May 17], 2016, DHS filed the underlying Petition to
____________________________________________


2Children continued to reside with their foster caregivers, who have become
pre-adoptive resources for Children.



                                           -3-
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          Terminate Mother’s Parental Rights to Child[ren]. Prior to
          the filing of the Petition, Mother had failed to comply with
          her SCP objectives and Mother had failed to enroll in the
          ARC program for housing and anger management. She
          also failed to enroll in domestic violence counseling.
          Mother was also inconsistent with participating in her
          mental health treatment and Mother had not stabilized her
          mental health.        On March 7, 2017[,] this [c]ourt
          terminated Mother’s parental rights to Children pursuant to
          23 Pa.C.S.A. § 2511(a)(1), (2), (5), …(8)[, and (b)3]. The
          [c]ourt ruled that [Children’s] goal be changed to
          adoption. Thereafter, Mother filed [timely] Notice[s] of
          Appeal on March 17, 2017[, and concise statements of
          errors complained of on appeal pursuant to Pa.R.A.P.
          1925(a)(2)(i)].

(Trial Court Opinion, filed May 23, 2017, at 3-5) (internal citations omitted).4

       Mother raises four issues for our review:

          DID THE DEPARTMENT OF HUMAN SERVICES (“DHS”)
          SUSTAIN ITS BURDEN UNDER 23 PA.C.S.A. § 2511(A)(1),
          (2), (5), OR (8) THAT MOTHER’S RIGHTS SHOULD BE
          TERMINATED WHEN THERE WAS EVIDENCE THAT MOTHER
          HAD    COMPLETED    AND/OR  HAD   BEEN    ACTIVELY
          COMPLETING HER PERMANENCY GOALS?

          WAS THERE SUFFICIENT EVIDENCE PRESENTED TO
          ESTABLISH UNDER 23 PA.C.S.A. § 2511(B) THAT IT WAS
          IN THE BEST INTERESTS OF…CHILDREN TO TERMINATE
          MOTHER’S PARENTAL RIGHTS?

          DID THE [TRIAL] COURT ERR WHEN IT MADE A SPECIFIC
____________________________________________


3 The court also terminated the parental rights of Children’s father, A.T.
(“Father”). Father is not a party to this appeal.

4 We see no reason to involve or discuss in these appeals the recent decision
of   Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969 (2018)
(requiring prospectively, separate notices of appeal from single orders which
resolve issues arising on separate trial court docket numbers). Mother’s
appeals predate Walker.



                                           -4-
J-S67031-17


           FINDING OF FACT BY RELYING ON DHS “EXHIBIT A”
           ENTITLED “STATEMENT OF FACTS” THAT WAS ATTACHED
           TO THE PETITIONS FOR GOAL CHANGE AND TERMINATION
           OF   PARENTAL    RIGHTS   WHEN    THERE WAS   NO
           STIPULATION OR TESTIMONY PRESENTED AS TO THE
           “FACTS” RELIED UPON IN THAT EXHIBIT?

           DID THE [TRIAL] COURT FULLY CONSIDER ALL
           NECESSARY FACTORS PURSUANT TO THE PENNSYLVANIA
           JUVENILE ACT, SPECIFICALLY 42 PA.C.S.A. § 6351(E)
           [AND] (F), IN ITS DETERMINATION THAT THE GOAL OF
           ADOPTION IS IN THE CHILDREN’S BEST INTEREST?

(Mother’s Brief at 4).5

        The standard and scope of review applicable in termination of parental

rights cases are as follows:

           When reviewing an appeal from a decree terminating
           parental rights, we are limited to determining whether the
           decision of the trial court is supported by competent
           evidence. Absent an abuse of discretion, an error of law,
           or insufficient evidentiary support for the trial court’s
           decision, the decree must stand. Where a trial court has
           granted a petition to involuntarily terminate parental
           rights, this Court must accord the hearing judge’s decision
           the same deference that it would give to a jury verdict.
           We must employ a broad, comprehensive review of the
           record in order to determine whether the trial court’s
           decision is supported by competent evidence.

           Furthermore, we note that the trial court, as the finder of
           fact, is the sole determiner of the credibility of witnesses
           and all conflicts in testimony are to be resolved by the
           finder of fact. The burden of proof is on the party seeking
           termination to establish by clear and convincing evidence
           the existence of grounds for doing so.

           The standard of clear and convincing evidence means
____________________________________________


5   For purposes of disposition, we have reordered Mother’s issues.



                                           -5-
J-S67031-17


         testimony that is so clear, direct, weighty, and convincing
         as to enable the trier of fact to come to a clear conviction,
         without hesitation, of the truth of the precise facts in issue.
         We may uphold a termination decision if any proper basis
         exists for the result reached. If the trial court’s findings
         are supported by competent evidence, we must affirm the
         court’s decision, even though the record could support an
         opposite result.

In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal

denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted).

      We combine Mother’s first, second, and third issues, in which she

argues she had been actively treating her mood disorder at the time DHS

filed the petition for involuntary termination of her parental rights. Mother

asserts her mental health had improved to the point where she no longer

needed medication.    Mother maintains she was participating in her mental

health treatment at the Wedge facility. Mother contends she was unable to

complete therapy because her therapist stopped working at that location,

and no one contacted Mother about continuing treatment with a new

therapist. Mother highlights the CUA caseworker’s testimony that Mother’s

home would be safe and appropriate for Children once she obtained beds,

and that Mother was no longer a danger to Children.          Mother claims she

remedied the mental health and housing issues, which brought Children into

DHS’ care. Mother challenges the court’s supposition that she was residing

with Father. Mother insists she has a bond with Children. Mother submits

the court failed to consider the effect of Children not residing together in one

household.

                                      -6-
J-S67031-17


     Mother also complains the trial court opinion cited to facts presented in

DHS’ “Statement of Facts” (attached as an exhibit to its termination

petition), where those facts were not established at the termination hearing.

Mother submits the “Statement of Facts” is nothing more than unproven

allegations. Mother concludes DHS failed to meet its burden under Section

2511(a) and (b), and this Court must reverse the order terminating Mother’s

parental rights to Children. We disagree that Mother is entitled to relief on

these grounds.

     The court granted DHS’ petition for involuntary termination of Mother’s

parental rights on the following grounds:

        § 2511. Grounds for involuntary termination

        (a) General Rule.―The rights of a parent in regard to a
        child may be terminated after a petition filed on any of the
        following grounds:

           (1) The parent by conduct continuing for a period of
           at least six months immediately preceding the filing
           of the petition either has evidenced a settled purpose
           of relinquishing parental claim to a child or has
           refused or failed to perform parental duties.

           (2) The repeated and continued incapacity, abuse,
           neglect or refusal of the parent has caused the child
           to be without essential parental care, control or
           subsistence necessary for his physical or mental
           well-being and the conditions and causes of the
           incapacity, abuse, neglect or refusal cannot or will
           not be remedied by the parent.

                                 *    *     *

           (5) The child has been removed from the care of the
           parent by the court or under a voluntary agreement

                                     -7-
J-S67031-17


            with an agency for a period of at least six months,
            the conditions which led to the removal or placement
            of the child continue to exist, the parent cannot or
            will not remedy those conditions within a reasonable
            period of time, the services or assistance reasonably
            available to the parent are not likely to remedy the
            conditions which led to the removal or placement of
            the child within a reasonable period of time and
            termination of the parental rights would best serve
            the needs and welfare of the child.

                                 *    *    *

            (8) The child has been removed from the care of the
            parent by the court or under a voluntary agreement
            with an agency, 12 months or more have elapsed
            from the date of removal or placement, the
            conditions which led to the removal or placement of
            the child continue to exist and termination of
            parental rights would best serve the needs and
            welfare of the child.

                                 *    *    *

         (b) Other considerations.―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. The rights of a parent shall not be
         terminated solely on the basis of environmental factors
         such as inadequate housing, furnishings, income, clothing
         and medical care if found to be beyond the control of the
         parent. With respect to any petition filed pursuant to
         subsection (a)(1), (6) or (8), the court shall not consider
         any efforts by the parent to remedy the conditions
         described therein which are first initiated subsequent to
         the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). “Satisfaction of any one

subsection of Section 2511(a), along with consideration of Section 2511(b),

is sufficient for involuntary termination of parental rights.”   In re K.Z.S.,

946 A.2d 753, 758 (Pa.Super. 2008).

                                     -8-
J-S67031-17


     “Under [S]ection 2511, the trial court must engage in a bifurcated

process.” In re I.J., 972 A.2d 5, 10 (Pa.Super. 2009).

         The initial focus is on the conduct of the parent. The party
         seeking termination must prove by clear and convincing
         evidence that the parent’s conduct satisfies at least one of
         the…statutory grounds delineated in section 2511(a). If
         the trial court determines that the parent’s conduct
         warrants termination under section 2511(a), then it must
         engage in an analysis of the best interests of the
         child…under section 2511(b), taking into primary
         consideration the developmental, physical, and emotional
         needs of the child.

                                  *      *   *

         [A] best interest of the child analysis under [section]
         2511(b) requires consideration of intangibles such as love,
         comfort, security, and stability. To this end, this Court has
         indicated that the trial court must also discern the nature
         and status of the parent-child bond, paying close attention
         to the effect on the child of permanently severing the
         bond.     Moreover, in performing a “best interests”
         analysis[, t]he court should also consider the importance
         of continuity of relationships to the child, because severing
         close parental ties is usually extremely painful. The court
         must consider whether a natural parental bond exists
         between child and parent, and whether termination would
         destroy an existing, necessary and beneficial relationship.
         Most importantly, adequate consideration must be given to
         the needs and welfare of the child.

Id. at 10-12 (internal citations and quotation marks omitted).

     Section 2511 outlines certain irreducible minimum requirements of

care that parents must provide for their children and a parent who cannot or

will not meet the requirements may properly be considered unfit and have

her parental rights terminated.       In re B.L.L., 787 A.2d 1007 (Pa.Super.

2001).

                                       -9-
J-S67031-17


            There is no simple or easy definition of parental
            duties. Parental duty is best understood in relation
            to the needs of a child.       A child needs love,
            protection, guidance, and support. These needs,
            physical and emotional, cannot be met by a merely
            passive interest in the development of the child.
            Thus, this [C]ourt has held that the parental
            obligation is a positive duty which requires
            affirmative performance.

            This affirmative duty encompasses more than a
            financial obligation; it requires continuing interest in
            the child and a genuine effort to maintain
            communication and association with the child.

            Because a child needs more than a benefactor,
            parental duty requires that a parent exert [herself]
            to take and maintain a place of importance in the
            child’s life.

         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 …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.

In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations omitted).         Accordingly, “a

parent’s basic constitutional right to the custody and rearing of…her child is

converted, upon the failure to fulfill…her parental duties, to the child’s right

to have proper parenting and fulfillment of his…potential in a permanent,

healthy, safe environment.” Id. at 856.

      “When conducting a bonding analysis, the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

                                     - 10 -
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well.    Additionally, Section 2511(b) does not require a formal bonding

evaluation.”    In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (internal

citations omitted). “Above all else[,] adequate consideration must be given

to the needs and welfare of the child. A parent’s own feelings of love and

affection for a child, alone, do not prevent termination of parental rights.”

Id. (internal citations omitted).       Further, “the general rule disfavoring

separation of siblings is not controlling” in a termination case. In re R.P.,

956 A.2d 449, 458 (Pa.Super. 2008).             Rather, the court has discretion to

place siblings separately if it serves their best interests, as “[t]he health,

safety, and welfare of each child supersede all other considerations.” Id.

        Instantly, the trial court explained:

           Children were adjudicated dependent on November 7,
           2014.     The record demonstrated Mother’s ongoing
           unwillingness to provide parental care or control for
           Children; to perform any parental duties and a failure to
           remedy the conditions that brought Children into care.
           The [c]ourt found clear and convincing evidence that
           termination of Mother’s parental rights would be in the
           best interest of Children pursuant to 23 Pa.C.S.A. §
           2511(a)(1), (2), (5), and (8) and 23 Pa.C.S.A. § 2511(b).

           At the [t]ermination [h]earing, Dr. William Russell testified
           in reference to his Parental Capacity Evaluation of Mother
           which occurred on January 15, 2016. Dr. Russell testified
           that at the time of the evaluation he had concluded that
           Mother was not able to provide safety to her children due
           to her mood instability. Dr. Russell testified that Mother
           required consistent mental health treatment to achieve the
           mood stability required for her to provide safety for her
           Children. Dr. Russell testified that as a result of Mother’s
           lack of mood stability she was unable to resolve housing
           issues and had difficulties interacting with other people.
           Dr. Russell testified that Mother had been diagnosed as

                                       - 11 -
J-S67031-17


       being [bipolar] and having symptoms of a borderline
       personality disorder requiring that Mother receive
       consistent mental health treatment.

       At the termination hearing, the CUA Representative
       testified that Mother was made aware of her SCP
       objectives. The objectives identified for Mother were (1)
       stabilize her mental health; (2) to complete intake at the
       Wedge Medical Center (“Wedge”); (3) to improve
       parenting/coping skills; (4) to continue to actively
       participate in all parenting, anger management counseling
       sessions; (5) to maintain her relationship with Children;
       (6) to attend her scheduled visits with Children; (7) to
       maintain safe and stable housing; (8) to enroll in the
       Achieving Reunification Center (“ARC”).

       The CUA Representative testified that Mother had failed to
       attend domestic violence training, which was significant
       due to a history of domestic violence between Mother and
       Father. The CUA Representative testified it was her belief
       that Mother and Father lived together.           The CUA
       Representative testified that Mother was inconsistent with
       her mental health treatment. The CUA Representative
       testified that the pre-adoptive parent of T.Q.K.W.T.
       (“Maternal Aunt”), was able to provide the child with love,
       safety and stability and support. The CUA Representative
       testified that T.Z.W.T. and T.Q.T.W. were in the care of
       their maternal grandmother and that she was able to
       provide love, safety, stability and support.      The CUA
       Representative testified that Children were bonded to their
       pre-adoptive foster parents.      The CUA Representative
       testified that changing Children’s goals from reunification
       to adoption would not cause irreparable harm to Children.
       The CUA Representative also testified that it would be in
       Children’s best interests to be adopted.          The CUA
       Representative testified that it was in Children’s best
       interests that Mother’s parental rights be terminated. The
       CUA Representative testified that the termination of
       Mother’s parental rights would not cause Children
       irreparable harm.

       This [c]ourt found the testimony of the CUA
       Representative and Dr. Russell to be credible and accorded
       [their] testimonies great weight.       Based upon this

                                 - 12 -
J-S67031-17


        testimony and the documents in evidence, this [c]ourt
        found clear and convincing evidence to terminate Mother’s
        parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2),
        (5) and (8) as Mother failed to remedy the conditions that
        brought her Children into care.       The [c]ourt further
        concluded that the termination of Mother’s parental rights
        would be in the best interest of Children pursuant to 23
        Pa.C.S.A. § 2511(b). This [c]ourt concluded that the
        respective pre-adoptive foster parents were able to meet
        Children’s needs.

(Trial Court Opinion at 5-8) (internal citations and footnote omitted).

Additionally, the court stated on the record at the conclusion of the

termination hearing:

        All right. Based upon the testimony I heard, the exhibits
        presented, which I accept, and based upon the credibility
        of the CUA worker, Dr. Russell, and the visitation coach, I
        find them to be credible. I do not find the testimony of
        Father or Mother to be credible. They—I’m not convinced
        that they’re not seeing each other. Whether they’re living
        together or not, it’s curious that they’re both using [the
        same] address….

        Father as late as 2016, it’s appearing on his—his criminal
        extract. He gave the [c]ourt that address…. And Mr.
        Jenkins, the visitation coach, said he was driving Mother
        home, and passed in front of the house and who happened
        to be there? [Father]. And that was in November. So,
        she was living there in November. He was living there.
        And I’m convinced he’s probably living there to—to this
        day in violation of the [c]ourt order as late as November
        14th, when I heard the case, and [M]aternal
        [G]randmother testified that Mother was taking the kids to
        see Father.

        And there was a violent history. She testified to that. And
        there’s a safety issue. Don’t tell me there’s no safety issue
        with him around and—and a domestic violence history that
        [C]hildren if—if they were reunited with either parent has
        gone unaddressed.       There’s—there’s never been any
        domestic violence counseling.

                                   - 13 -
J-S67031-17



         As far as—you’re saying this is a housing issue. The—Dr.
         Russell clearly testified mental health is a big issue in this
         case. And she stopped going in June on her own and
         never re-enrolled according to her because nobody called
         her. Well, obviously, she needs continuing mental health
         treatment.

         And I mean Father’s testimony is just totally incredible
         with regard to where he lives and what the living
         arrangements are. …

         As far as the bond—the bonding of [M]other, I believe
         there’s a bond. But it’s not a parental bond. It—it’s a
         bond of someone that—that apparently has an attachment
         to [C]hildren. And they’re glad to see her when—when she
         gets there. But she’s not a parent at this point. Hasn’t
         been for the last two-and-a-half years that these children
         have been in placement.

(N.T. Termination Hearing, 3/7/17, at 165-67).       The record supports the

court’s analysis.

      The record makes clear Children’s primary bond is with their

respective pre-adoptive parents. (See id. at 92; 118-19; 167). As well, the

fact that T.Q.K.W.T. is in a separate pre-adoptive home is not controlling,

where his continued placement with Maternal Aunt serves his best interests.

See In re R.P., supra.       Further, the record supports each of the facts

outlined by DHS in its “Statement of Facts” attached to its termination

petition. That the court referred to the “Statement of Facts” in its opinion,

over other places in the record, is of no moment, where the record supports

the court’s decision to terminate Mother’s parental rights to Children under

Section 2511(a)(1), (2), (5), (8), and (b).    See In re Adoption of K.J.,


                                     - 14 -
J-S67031-17


supra.

       Notwithstanding the formal statement of her fourth issue, Mother

argues the court failed to appoint separate legal counsel for Children to

express their preferred outcome in this case. Mother concludes that recent

changes in the law require this Court to reverse and remand for the

appointment of separate legal counsel and a de novo review of the

appropriateness of the goal change6 and termination decision.      We agree

with Mother on this issue but only with respect to the oldest child,

T.Q.K.W.T.

       Section 2313 of the Domestic Relations Code governs representation

of Children in a contested termination proceeding, in pertinent part, as

follows:

           § 2313. Representation

              (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.

____________________________________________


6  Mother mentions, but fails to develop, a separate cogent argument
concerning the appropriateness of the goal change decision. Instead, she
focuses her argument on the court’s failure to appoint separate legal counsel
to express Children’s preferred outcome in this case.



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23 Pa.C.S.A. § 2313(a).        Our Supreme Court recently interpreted and

applied Section 2313(a) as follows:

          [A] majority of the Court agreed on several points: (a) in
          the context of contested termination-of-parental-rights
          (“TPR”) proceedings, the first sentence of Section 2313(a)
          requires that the common pleas court appoint an attorney
          to represent the child’s legal interests, i.e., the child’s
          preferred outcome; (b) where there is a conflict between
          the child’s legal interests and his best interests, an
          attorney-guardian ad litem (an “attorney-GAL”), who
          advocates for the child’s best interests, cannot
          simultaneously represent the child’s legal interests; and (c)
          in such a circumstance, the failure to appoint a separate
          attorney to represent the child’s legal interests constitutes
          structural error, meaning it is not subject to a harmless-
          error analysis.

In re T.S. at ___, 192 A.3d at 1082 (summarizing agreed-upon positions of

In re Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172 (2017)) (internal

footnotes omitted).    Our Supreme Court has made clear: “The statutory

right under Section 2313(a) belongs to the child, not the parent.”           T.S.,

supra at ___, 192 A.3d at 1087. Thus, “the failure of any party, including

Mother,   to   affirmatively   request   separate   counsel   for   the   children

cannot…[constitute] waiver.” Id.

     Nevertheless, “if the wishes of the child cannot be ascertained [due to

a child’s young age], the GAL has no duty to advise the court of such wishes.

For purposes of the proceeding, such wishes do not exist.” Id. at ___, 192

A.3d at 1089-90.      Consequently, where an attorney-GAL is appointed to

represent the child’s best interests, Section 2313(a) does not require the

appointment of separate legal counsel to advance child’s legal interests, if

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the child is too young to articulate a “preferred outcome.” Id. (establishing

presumption that child three years of age or younger cannot form

subjective, articulable preference that would necessitate appointment of

separate legal counsel to advocate during termination proceeding).

      Additionally, the court’s failure to appoint separate legal counsel does

not constitute reversible error, so long as the child is represented by an

attorney-GAL and the record makes clear no conflict exists between the

child’s best interests and legal interests.    See, e.g., In re K.R., supra

(holding court’s failure to appoint separate counsel to represent children’s

legal interests did not constitute reversible error, where attorney-GAL

expressed children’s preferences on record and confirmed no conflict existed

between children’s legal and best interests); In re G.M.S., 193 A.3d 395

(Pa.Super. 2018) (declining to remand for appointment of separate legal

counsel, where expert testified at termination hearing that she interviewed

child who preferred to be adopted by maternal grandmother; child’s legal

interests were aligned with child’s best interests).

      Instantly, on October 27, 2014, the court appointed the Defender

Association of Philadelphia, Child Advocacy Unit, to serve as counsel and GAL

for Children throughout all of the relevant proceedings in this case.     The

court did not appoint separate legal counsel for Children for the termination

proceedings.   At the time of the termination hearing on March 7, 2017,

T.Q.K.W.T. was five years old, T.Q.T.W. was three years old, and T.Z.W.T.


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J-S67031-17


was two years old.

      Initially, we observe that although the issue concerning appointment

of separate legal counsel for Children was raised for the first time on appeal,

we can review it. See In re T.S., supra. Nevertheless, that claim merits

no relief concerning the two Children, T.Q.T.W. and T.Z.W.T., as they were

too young to articulate a preferred outcome at the time of the termination

hearing.   See id.   Regarding the oldest child, T.Q.K.W.T., however, the

record shows the court failed to appoint separate legal counsel, as required

under Section 2313(a) and current prevailing law.        See 23 Pa.C.S.A. §

2313(a); In re T.S., supra. Significantly, the record lacks any evidence of

T.Q.K.W.T.’s preferred outcome in this matter, even though the record

demonstrates that his primary bond is with Maternal Aunt, who is meeting

all of his needs.

      Under these circumstances, we must vacate the termination order

regarding T.Q.K.W.T., without prejudice, and remand the case for further

proceedings.    Upon remand, the court shall appoint separate counsel to

represent T.Q.K.W.T.’s legal interests. After review of the prior proceedings

and consultation with T.Q.K.W.T., legal-interests counsel shall notify the

court of T.Q.K.W.T.’s preferred outcome and whether a new hearing is

necessary for an opportunity for counsel to advocate on T.Q.K.W.T.’s behalf.

The court shall conduct a new hearing only if a new hearing is necessary to

explore T.Q.K.W.T.’s preferred outcome in comparison to his best interests.


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J-S67031-17


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

(vacating and remanding for appointment of legal-interests counsel, where

child was five years old at termination hearing, and no evidence in record

showed consideration of child’s preferred outcome). Compare In re K.R.,

supra; In re G.M.S., supra. Accordingly, we affirm the court’s orders as to

T.Z.W.T. and T.Q.T.W.     We also affirm the court’s decision under Section

2511(a) and (b) with respect to T.Q.K.W.T., but we must vacate that

termination order and remand for appointment of counsel for T.Q.K.W.T.,

under 23 Pa.C.S.A. § 2313(a), and for reconsideration of that termination

order under current prevailing law, without prejudice to reinstate the

termination order following further evaluation and reconsideration.

      Orders affirmed as to T.Z.W.T. and T.Q.T.W.; order regarding

T.Q.K.W.T. is vacated without prejudice and his case is remanded for the

appointment of legal-interests counsel under 23 Pa.C.S.A. § 2313(a) and for

further evaluation and reconsideration. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/19




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