J-S57016-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M.R. A/K/A : IN THE SUPERIOR COURT OF A.R., A MINOR : PENNSYLVANIA : : APPEAL OF: D.R., FATHER : : : : : No. 1367 EDA 2018
Appeal from the Decree April 10, 2018 in the Court of Common Pleas of Philadelphia County Family Court at Nos.: CP-51-AP-0000010-2018 FID: 51-FN-002198-2015
BEFORE: PANELLA, J., PLATT*, J., and STRASSBURGER*, J.
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 09, 2018
D.R. (“Father”) appeals from the decree of the Court of Common Pleas
of Philadelphia County, entered April 10, 2018, which granted the petition of
the Department of Human Services (“DHS”) and involuntarily terminated his
parental rights to his daughter, A.M.R. (“Child”) (born in May 2008), pursuant
the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), and (b).1 We are
constrained to vacate and remand for further proceedings consistent with this
memorandum.
We take the following facts and procedural history from the trial court’s
opinion, which in turn is supported by the record. (See Trial Court Opinion,
____________________________________________
1The trial court confirmed the consent to termination of the parental rights of Child’s natural mother, E.C. (“Mother”), in an order entered that same day. Mother is not a party to the instant appeal and has not filed a separate appeal. ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S57016-18
6/06/18, at 1-4; see also N.T. Hearing, 4/10/18, at 1-50). In October 2015,
DHS received a report alleging that Child had been the victim of sexual abuse
by Mother’s ex-paramour and that Mother had stopped sending Child to school
for fear that Child would disclose the abuse to staff. The report was
determined to be valid, and Child was removed from Mother’s home.
Following a shelter care hearing, DHS was granted temporary legal custody of
Child. At that time, Father was not involved in the care of Child. Child was
placed in foster care and DHS subsequently filed a dependency petition. Child
was adjudicated dependent on October 26, 2015, with full legal custody
granted to DHS. Father did not attend the dependency hearing.
The court conducted permanency review hearings between November
2015 and January 2018. Father met with Community Umbrella Agency
(“CUA”) representatives, where permanency goals were identified for him at
a single case plan (“SCP”) objective meeting. These goals were to cooperate
with supervised visitation; attend Achieving Reunification Center (“ARC”) for
parenting classes; and obtain appropriate housing. In early 2016, Child, who
had been previously placed with paternal grandmother, was removed from the
home after alleging that grandmother hit her. Child was placed in a pre-
adoptive foster home, where she has resided since. As of September 2017,
Father was not compliant with his SCP objectives. He visited Child only twice,
in July 2017, had not attended ARC, and had not obtained appropriate
housing.
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On January 8, 2018, DHS filed a petition seeking to involuntarily
terminate Father’s parental rights and change Child’s permanency goal to
adoption. On April 10, 2018, the court held a hearing on the termination and
goal change petitions. Child was represented by Melanie Silverstein, Esquire,
as legal counsel and Kathleen Taylor, Esquire, as guardian ad litem. (See
N.T. Hearing, at 6). Neither Attorney Silverstein nor Attorney Taylor
presented witnesses or participated in cross examination. (See id. at 31, 41-
42). Neither attorney made argument regarding Child’s best interests or legal
interests, and they joined DHS’s argument. (See id. at 43). Father was
represented by counsel and testified on his own behalf. (See id. at 5, 37-41).
Cynthia Marcano, the CUA case manager, testified for DHS, and opined that it
was in Child’s best interests for Father’s parental rights to be terminated and
her goal changed to adoption. (See id. at 30-31; see also id. at 19-36).
Following the conclusion of DHS’s case in chief, the court granted the petition
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b), and entered a decree
terminating Father’s parental rights.
Father timely filed a notice of appeal and a concise statement of errors
complained of on appeal from the termination docket. See Pa.R.A.P.
1925(a)(2)(i). The trial court entered its opinion on June 6, 2018. See
Pa.R.A.P. 1925(a)(2)(ii).
Father now raises the following issues for our review.
1. Whether the trial court erred in terminating [Father’s] parental rights under 23 Pa.C.S.A. [§] 2511(a)(1), the evidence having been insufficient to establish [Father] had evidenced a settled
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purpose of relinquishing his parental claim, or having refused or failed to perform parental duties[?]
2. Whether the evidence was sufficient to establish that [Father] had refused or failed to perform parental duties, caused Child to be without essential parental care, that conditions having led to placement had continued to exist, or finally that any of the above could not have been remedied[?]
3. Whether the evidence was sufficient to establish that termination of parental rights would best serve the needs and welfare of the minor Child, under 23 Pa.C.S.[A. §] 2511(b)[?]
(Father’s Brief, at 5) (unnecessary capitalization omitted).
Prior to addressing the merits of Father’s appeal, we must first address
sua sponte the representation provided by Child’s legal counsel. See In re:
K.J.H., 180 A.3d 411, 413 (Pa. Super. 2018). Our Supreme Court, in In re
Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality), held that 23
Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent the legal
interests of any child involved in contested involuntary termination
proceedings. The Court noted that legal interests are synonymous with the
child’s preferred outcome, but the child’s best interests are determined by the
court. See In re L.B.M., supra at 183. Since L.B.M., this Court has clarified
the requirements counsel must meet in order to provide adequate
representation in termination matters. See In re Adoption of T.M.L.M., 184
A.3d 585, 587-91 (Pa. Super. 2018).
Here, the trial court appointed legal counsel for Child, Attorney
Silverstein. Attorney Silverstein was present at the hearing, but did not
present evidence, cross-examine witnesses, or argue Child’s legal
preferences. (See N.T. Hearing, 4/10/18, at 31, 41-43). The record is silent
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as to whether Attorney Silverstein ascertained Child’s legal preferences during
the pendency of the appeal. While Child’s guardian ad litem has filed a brief
before this Court arguing it is in Child’s best interests to terminate Father’s
rights, Attorney Silverstein has not filed a brief or joined the brief of another
party. See In re T.M.L.M., supra at 590 (noting that counsel’s duty to
represent a child does not stop at the conclusion of the termination of parental
rights hearing). There is nothing in the record to indicate that Child, who was
nine years and ten months old at the time of the hearing, could not
communicate her preferred outcome. See id. (explaining that six year old
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J-S57016-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M.R. A/K/A : IN THE SUPERIOR COURT OF A.R., A MINOR : PENNSYLVANIA : : APPEAL OF: D.R., FATHER : : : : : No. 1367 EDA 2018
Appeal from the Decree April 10, 2018 in the Court of Common Pleas of Philadelphia County Family Court at Nos.: CP-51-AP-0000010-2018 FID: 51-FN-002198-2015
BEFORE: PANELLA, J., PLATT*, J., and STRASSBURGER*, J.
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 09, 2018
D.R. (“Father”) appeals from the decree of the Court of Common Pleas
of Philadelphia County, entered April 10, 2018, which granted the petition of
the Department of Human Services (“DHS”) and involuntarily terminated his
parental rights to his daughter, A.M.R. (“Child”) (born in May 2008), pursuant
the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), and (b).1 We are
constrained to vacate and remand for further proceedings consistent with this
memorandum.
We take the following facts and procedural history from the trial court’s
opinion, which in turn is supported by the record. (See Trial Court Opinion,
____________________________________________
1The trial court confirmed the consent to termination of the parental rights of Child’s natural mother, E.C. (“Mother”), in an order entered that same day. Mother is not a party to the instant appeal and has not filed a separate appeal. ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S57016-18
6/06/18, at 1-4; see also N.T. Hearing, 4/10/18, at 1-50). In October 2015,
DHS received a report alleging that Child had been the victim of sexual abuse
by Mother’s ex-paramour and that Mother had stopped sending Child to school
for fear that Child would disclose the abuse to staff. The report was
determined to be valid, and Child was removed from Mother’s home.
Following a shelter care hearing, DHS was granted temporary legal custody of
Child. At that time, Father was not involved in the care of Child. Child was
placed in foster care and DHS subsequently filed a dependency petition. Child
was adjudicated dependent on October 26, 2015, with full legal custody
granted to DHS. Father did not attend the dependency hearing.
The court conducted permanency review hearings between November
2015 and January 2018. Father met with Community Umbrella Agency
(“CUA”) representatives, where permanency goals were identified for him at
a single case plan (“SCP”) objective meeting. These goals were to cooperate
with supervised visitation; attend Achieving Reunification Center (“ARC”) for
parenting classes; and obtain appropriate housing. In early 2016, Child, who
had been previously placed with paternal grandmother, was removed from the
home after alleging that grandmother hit her. Child was placed in a pre-
adoptive foster home, where she has resided since. As of September 2017,
Father was not compliant with his SCP objectives. He visited Child only twice,
in July 2017, had not attended ARC, and had not obtained appropriate
housing.
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On January 8, 2018, DHS filed a petition seeking to involuntarily
terminate Father’s parental rights and change Child’s permanency goal to
adoption. On April 10, 2018, the court held a hearing on the termination and
goal change petitions. Child was represented by Melanie Silverstein, Esquire,
as legal counsel and Kathleen Taylor, Esquire, as guardian ad litem. (See
N.T. Hearing, at 6). Neither Attorney Silverstein nor Attorney Taylor
presented witnesses or participated in cross examination. (See id. at 31, 41-
42). Neither attorney made argument regarding Child’s best interests or legal
interests, and they joined DHS’s argument. (See id. at 43). Father was
represented by counsel and testified on his own behalf. (See id. at 5, 37-41).
Cynthia Marcano, the CUA case manager, testified for DHS, and opined that it
was in Child’s best interests for Father’s parental rights to be terminated and
her goal changed to adoption. (See id. at 30-31; see also id. at 19-36).
Following the conclusion of DHS’s case in chief, the court granted the petition
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b), and entered a decree
terminating Father’s parental rights.
Father timely filed a notice of appeal and a concise statement of errors
complained of on appeal from the termination docket. See Pa.R.A.P.
1925(a)(2)(i). The trial court entered its opinion on June 6, 2018. See
Pa.R.A.P. 1925(a)(2)(ii).
Father now raises the following issues for our review.
1. Whether the trial court erred in terminating [Father’s] parental rights under 23 Pa.C.S.A. [§] 2511(a)(1), the evidence having been insufficient to establish [Father] had evidenced a settled
-3- J-S57016-18
purpose of relinquishing his parental claim, or having refused or failed to perform parental duties[?]
2. Whether the evidence was sufficient to establish that [Father] had refused or failed to perform parental duties, caused Child to be without essential parental care, that conditions having led to placement had continued to exist, or finally that any of the above could not have been remedied[?]
3. Whether the evidence was sufficient to establish that termination of parental rights would best serve the needs and welfare of the minor Child, under 23 Pa.C.S.[A. §] 2511(b)[?]
(Father’s Brief, at 5) (unnecessary capitalization omitted).
Prior to addressing the merits of Father’s appeal, we must first address
sua sponte the representation provided by Child’s legal counsel. See In re:
K.J.H., 180 A.3d 411, 413 (Pa. Super. 2018). Our Supreme Court, in In re
Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality), held that 23
Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent the legal
interests of any child involved in contested involuntary termination
proceedings. The Court noted that legal interests are synonymous with the
child’s preferred outcome, but the child’s best interests are determined by the
court. See In re L.B.M., supra at 183. Since L.B.M., this Court has clarified
the requirements counsel must meet in order to provide adequate
representation in termination matters. See In re Adoption of T.M.L.M., 184
A.3d 585, 587-91 (Pa. Super. 2018).
Here, the trial court appointed legal counsel for Child, Attorney
Silverstein. Attorney Silverstein was present at the hearing, but did not
present evidence, cross-examine witnesses, or argue Child’s legal
preferences. (See N.T. Hearing, 4/10/18, at 31, 41-43). The record is silent
-4- J-S57016-18
as to whether Attorney Silverstein ascertained Child’s legal preferences during
the pendency of the appeal. While Child’s guardian ad litem has filed a brief
before this Court arguing it is in Child’s best interests to terminate Father’s
rights, Attorney Silverstein has not filed a brief or joined the brief of another
party. See In re T.M.L.M., supra at 590 (noting that counsel’s duty to
represent a child does not stop at the conclusion of the termination of parental
rights hearing). There is nothing in the record to indicate that Child, who was
nine years and ten months old at the time of the hearing, could not
communicate her preferred outcome. See id. (explaining that six year old
child likely has feelings one way or another about parent and his permanency).
Further, there is nothing in the record that clearly indicates Child’s
preferences, besides the circumstantial evidence that Father has been largely
uninvolved in her life and that she appears happy in her pre-adoptive foster
home.
Accordingly, we are constrained to vacate the decree in this matter, and
remand for further proceedings. See id. at 587-91 (vacating and remanding
for further proceedings where attorney admitted she did not interview six-
year-old child to ascertain child’s preferences); see also In re Adoption of
D.M.C., --- A.3d ---, 2018 WL 3341686 at **5-6 (Pa. Super. filed July 9,
2018) (vacating and remanding where record was unclear in what capacity
attorney had been appointed to represent children and whether attorney had
ascertained children’s legal interests prior to hearing); In re Adoption of
M.D.Q., --- A.3d ---, 2018 WL 3322744 at **3-5 (Pa. Super. filed July 6,
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2018) (vacating and remanding where record does not indicate that counsel
attempted to ascertain children’s preferences and record does not reflect
children’s legal interests).
Accordingly, we remand to the trial court to re-appoint legal counsel and
a guardian ad litem for Child, and direct counsel to “effective[ly] represent[]”
Child by “ascertain[ing] [Child’s] position and advocating in a manner
designed to effectuate that position.” In re T.M.L.M., supra at 590. Once
counsel identifies Child’s preferred outcome, counsel shall notify the trial court
whether termination of Father’s parental rights is consistent with Child’s legal
interests. If Child’s preferred outcome is consistent with the result of the prior
termination proceedings, the trial court shall re-enter its April 10, 2018
termination decree as to Father. If the preferred outcome is in conflict with
the prior proceeding, the trial court shall conduct a new termination/goal
change hearing as to Father only, to provide Child’s legal counsel an
opportunity to advocate on behalf of Child’s legal interests. See id. at 591
(ordering that trial court shall conduct a new hearing only if it serves the
substantive purpose of providing child with opportunity to advance his legal
interests through new counsel).
Decree vacated as to Father without prejudice to permit the trial court
to re-enter the original decree if a new termination hearing is not required.
Case remanded for proceedings consistent with this memorandum.
Jurisdiction relinquished.
Judge Panella concurs in the result.
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Judge Strassburger files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/9/18
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