In Re: M.W.H., Jr. and J.J.D., Minor ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.W.H., JR. : IN THE SUPERIOR COURT OF
AND J.J.D., MINOR CHILDREN : PENNSYLVANIA
:
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APPEAL OF: T.D., MOTHER :
:
:
:
: No. 3039 EDA 2018
Appeal from the Decree Entered September 17, 2018
In the Court of Common Pleas of Northampton County Orphans' Court at
No(s): No. 2017-0078/2017-0079
BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 26, 2019
T.D. (“Mother”) appeals from the orphans’ court decree entered on
September 17, 2018, that granted the petitions of the Northampton County
Department of Human Services, Children, Youth and Families (“CYF”) to
involuntarily terminate her parental rights to her minor sons, M.W.H., Jr. and
J.J.D.1 We vacate and remand for further proceedings.
M.W.H., Jr. was born in June of 2011 and J.J.D. was born in November
of 2015. M.W.H., Jr. and J.J.D. came to the attention of CYF on May 25, 2016,
as a result of a referral alleging that then-six-month-old J.J.D. had been left
unattended in a hotel room the preceding day. The child was discovered when
law enforcement personnel arrived at the hotel room to serve a warrant
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1 The orphans’ court also involuntarily terminated the parental rights of the
respective fathers of M.W.H., Jr. and J.J.D. Neither father appealed.
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authorizing the detention of J.J.D.’s maternal grandmother, who was a
registered occupant. As officers attempted to serve the warrant, they
observed Mother flee from the hotel. Since J.J.D.’s maternal grandmother
was in police custody at that juncture, J.J.D. lacked adult supervision. Inside
the room, the officers discovered drug paraphernalia next to J.J.D.’s baby
formula.
On June 10, 2016, the juvenile court adjudicated M.W.H., Jr. and J.J.D.
dependent. Mother retained legal and physical custody pursuant to a
permanency plan. The permanency plan required Mother to: cooperate with
mental health services, including the signing of appropriate releases;
cooperate with random drug screens; cooperate with in-home services; and
maintain stable and legitimate income and housing. Mother failed to comply
with the permanency plan almost immediately. She tested positive for cocaine
on July 5 and July 7, 2016, and missed a drug test on July 8, 2016. There
were also concerns with Mother’s housing, and she did not cooperate with the
in-home service provider. CYF obtained an order for emergency protective
custody on July 11, 2016. The children were placed together in kinship foster
care with their maternal aunt and her husband.
Following the removal of her children, Mother’s goals from the original
permanency plan remained in place, with the addition of Mother completing a
drug and alcohol evaluation. Further, Mother had the opportunity for
supervised visitation. Mother’s compliance with the permanency plan was
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minimal. Mother’s visitation was sporadic, and her visits were reduced from
biweekly to weekly due to her inconsistent attendance. N.T., 7/17/18, at 20.
In February of 2017, Mother witnessed a murder and, out of concern for the
safety of her children, ceased visitation until May of 2017. Id. at 22-25.
Although Mother completed a drug and alcohol treatment program in early
2017, she failed to follow up with outpatient care, and tested positive for
cocaine within a week of discharge. Id. at 23-24, 32. Likewise, Mother
missed drug tests and tested positive for cocaine as late as October 2017.
N.T., 7/17/18, at 42; CYF Exhibit 4. In addition, Mother was incarcerated
periodically during the proceedings. Id. at 39-42, 101. Mother’s housing was
deemed unstable as she refused to give CYF any information about the man
who resided with her other than his nickname. Id. at 15.
M.W.H., Jr. and J.J.D. were placed in general foster care in January of
2017 due to marital issues between the maternal aunt and her husband. Id.
at 26-27. The boys currently reside together in a pre-adoptive foster home,
where they are thriving. Id. at 27, 35-36, 52-55.
On July 13, 2017, CYF filed petitions to involuntarily terminate Mother’s
parental rights to M.W.H., Jr. and J.J.D. By orders dated December 19, 2017,
the orphans’ court appointed Barbara Baldo, Esquire as counsel for M.W.H.,
Jr. and J.J.D.2 Following several continuances, the orphans’ court conducted
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2 M.W.H., Jr., and J.J.D. also had the benefit of a guardian ad litem.
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a hearing on the petitions on July 17, 2018. At the hearing, CYF presented
the testimony of caseworkers Amanda Christman and Allyson Barr. Mother
testified on her own behalf. Attorney Baldo appeared at the hearing and
participated in limited cross-examination of witnesses. By a single decree
dated September 13, 2018, and entered September 17, 2018, the orphans’
court involuntarily terminated Mother’s parental rights to M.W.H., Jr. and
J.J.D. Mother timely filed a notice of appeal, along with a concise statement
of errors complained of on appeal.3
Mother presents the following issues for our review:
A. Whether the trial court erred in finding that Mother has evidenced
a settled purpose of relinquishing parental claim to [M.W.H., Jr.
and J.J.D.] or has failed to perform her parental duties without
adequate explanation for her conduct?
B. Whether the trial court erred in finding that Mother has caused
[M.W.H., Jr. and J.J.D.] to be without essential parental care,
control, or subsistence necessary for their physical or mental well-
being and the conditions and causes of the incapacity, abuse,
neglect or refusal cannot or will not be remedied by Mother?
C. Whether the trial court erred in finding that [M.W.H., Jr. and
J.J.D.] have been removed from the natural parent for a period of
at least six months, and the conditions which led to the removal
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3 In Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018), our Supreme
Court concluded that an appellant’s failure to file separate notices of appeal
from an order resolving issues on more than one docket “requires the
appellate court to quash the appeal.” Thus, in order to comply with the strict
dictate announced in Walker, Mother was required to file separate notices of
appeal from the single orphans’ court decree that terminated her parental
rights to both M.W.H., Jr. and J.J.D. While the certified record does not include
two notices of appeal, the docket entries for the respective cases confirm that
Mother appealed the order in both cases on October 30, 2018. Therefore, we
do not quash the instant appeal.
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or placement of [M.W.H., Jr. and J.J.D.] continue to exist, and
Mother cannot or will not remedy those conditions within a
reasonable period of time, and termination of parental rights best
serves the needs and welfare of [M.W.H., Jr. and J.J.D.]?
D. Whether the trial court erred in finding that [M.W.H., Jr. and
J.J.D.] have been removed from the natural parent for a period of
at least twelve months, and the conditions which led to the
removal or placement of [M.W.H., Jr. and J.J.D.] continue to exist,
and Mother cannot or will not remedy those conditions within a
reasonable period of time, and termination of parental rights best
serves the needs and welfare of [M.W.H., Jr. and J.J.D.]?
E. Whether the trial court erred in finding that termination will meet
the needs and welfare of [M.W.H., Jr. and J.J.D.]?
Mother’s brief at 4-5 (citations, suggested answers, and unnecessary
capitalization omitted).
Before reviewing the merits of the issues Mother wishes to raise on
appeal, we must address sua sponte M.W.H., Jr.’s and J.J.D.’s right to legal
counsel. “Appointment of counsel representing the child is mandatory, and
failure to do so is legal error. This Court must raise the failure to appoint
statutorily-required counsel for children sua sponte, as children are unable to
raise the issue on their own behalf due to their minority.” In re Adoption of
T.M.L.M., 184 A.3d 585, 588 (Pa.Super. 2018) (citations omitted).
M.W.H., Jr.’s and J.J.D.’s right to legal counsel derives from the Adoption
Act, which requires the appointment of counsel in all contested involuntarily
termination proceedings.
(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
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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.
23 Pa.C.S. § 2313(a).
Our Supreme Court has explained that the term “counsel” in 23 Pa.C.S.
§ 2313(a) refers to an attorney directed by the child who represents the child’s
legal interest. In re Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017).
Critically, a child’s legal interest is distinct from his or her best interests. Id.
at 174. While a child’s legal interest is synonymous with his or her preferred
outcome, a child’s best interests must be determined by the orphans’ court.
Id. The Pennsylvania Supreme Court has held that: (1) a guardian ad litem
may serve as counsel where there is no conflict between the child’s legal and
best interests; and (2) that there is no conflict between the child’s best and
legal interests if the child is non-communicative due to the child’s young age.
See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018).
We find instructive this Court’s recent holding in T.M.L.M., which
involved a child who was just under six years old at the time of the hearings
to terminate his mother’s parental rights. In that case, the child’s attorney
did not attempt to interview him, nor did she set forth his preferred outcome
on the record. T.M.L.M., supra at 589-90. The attorney advocated solely
for the child’s bests interests during the hearings, rather than his legal
interest. Id. at 590. Finally, the attorney did not file a brief on appeal, nor
did she join a brief filed by another party. Id.
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This Court concluded that the attorney’s representation failed to comply
with the requirements of 23 Pa.C.S. § 2313(a) and our Supreme Court’s
holding in L.B.M., supra, and vacated the decree terminating the mother’s
parental rights. We provided the following explanation for our decision.
At the time of the hearings, Child was just shy of six years old.
While Child may not have been old enough to participate actively
in [the attorney’s] representation of him, it is not unlikely that
Child 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 Child’s preferred outcome in this case is
synonymous with his best interests. It may be that Child wants
no contact with Mother. Child may be unable to articulate a clear
position or have mixed feelings about the matter. Furthermore,
termination of Mother’s rights may still be appropriate even if
Child prefers a different outcome. However, . . . it is clear that
where a court appoints an attorney ostensibly as counsel, but the
attorney never attempts to ascertain the client’s position directly
and advocates solely for the child’s best interests, the child has
been deprived impermissibly of his statutory right to counsel
serving his legal interests.
T.M.L.M., supra at 590.
In this case, M.W.H., Jr. was seven years old at the time of the
termination hearing, while J.J.D. was more than two-and-a-half years old.
However, M.W.H., Jr.’s and J.J.D.’s legal counsel did not indicate that she
interviewed them in order to discern their preferred outcomes. Counsel did
not explain M.W.H., Jr.’s and J.J.D.’s preferred outcomes on the record, nor
did she state that she was unable to determine their preferences. We also
note with disapproval that counsel failed to file a brief on appeal advocating
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for M.W.H., Jr.’s, and J.J.D.’s legal interests.4 See id. (“Counsel’s duty to
represent a child does not stop at the conclusion of the termination of parental
rights hearing.”).
Finally, we are unable to discern M.W.H., Jr.’s and J.J.D.’s legal interests
from any other source in the certified record. The testimony indicated that
M.W.H., Jr. and J.J.D. are residing in the same pre-adoptive home and are
thriving. N.T., 7/17/18, at 27, 35-36, 52-55. However, the testimony also
suggests that the visits with Mother go well. Id. at 53, 59-60. There was
simply no evidence presented to clarify M.W.H., Jr.’s and J.J.D.’s preferred
outcomes.5
Further complicating this matter, our review of the opinion submitted by
the orphans’ court reveals that the court erred by failing to conduct an
adequate analysis of M.W.H., Jr.’s, and J.J.D.’s needs and welfare pursuant to
23 Pa.C.S. § 2511(b). The Adoption Act provides as follows, in relevant part.
(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
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4M.W.H., Jr.’s and J.J.D.’s guardian ad litem filed a letter joining the brief of
CYF. The letter does not reference the children’s preferred outcome.
5 We recognize that J.J.D. is currently three years old, and may be too young
to express his own preferred outcome or placement. However, because we
are remanding for legal counsel to attempt to discern the legal interest of
M.W.H., Jr., in the exercise of caution, counsel should do the same for J.J.D.
If J.J.D. is unable to express a preference, counsel shall notify the orphans’
court and represent child’s best interest consistent with In re T.S., supra at
1092-93.
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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. § 2511(b).
It is well established that an orphans’ court may not involuntarily
terminate parental rights without first considering the bond between the
parent and his or her child, if any, and the effect that severing that bond may
have on the child. In re Adoption of A.C.H., 803 A.2d 224, 229 (Pa.Super.
2002). As this Court has emphasized, “[w]e cannot underestimate the
importance of a child’s relationship with his or her biological parents.
Furthermore, we are mindful of the fact that continuity of relationships is
important to a child, and we agree that severance of close parental ties
through a termination of parental rights can be extremely painful.” Id.(citations and quotation marks omitted).
In the instant matter, the orphans’ court’s analysis of § 2511(b) is as
follows:
In summary, there is little to no progress. None of the parents
[is] in a position to have the children returned to their custody,
nor does it appear that any of the parents will be available as a
custodial resource within the foreseeable future.
For this reason, we find that [CYF] has met i[t]s burden that it is
in the children’s best interests that the parental rights of [Mother,
M.S, and M.W.H., Sr.,] be terminated, so that they may be
adopted into a stable home.
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Orphans’ Court Opinion, 9/13/18, at 12-13.
The court’s analysis features no discussion of the relevant § 2511(b)
considerations. In this vein, the court neglected to address whether M.W.H.,
Jr. or J.J.D. has a bond with Mother, the nature of any such bonds, or the
effect that severing them would have on the respective children. The court
simply concluded Mother will not be available as a custodial resource within
the foreseeable future, and, therefore, that it is in M.W.H., Jr.’s and J.J.D.’s
best interests to terminate Mother’s parental rights. This conclusory analysis
is inadequate.
Based on the foregoing, we vacate the decree terminating Mother’s
parental rights and remand this matter to the orphans’ court. See T.M.L.M.,
supra at 590-91. On remand, counsel must interview M.W.H., Jr. and J.J.D.
to discern their legal interests. If counsel determines that M.W.H., Jr. and
J.J.D. have differing preferred outcomes, the court must appoint separate
legal counsel for each child. A new hearing is required only if either child’s
legal interest conflicts with the result of the prior termination proceeding. Id.
at 591. If the legal interests of M.W.H., Jr. and J.J.D. coincide with the result
of the prior termination hearing, the orphans’ court may re-enter the original
decree terminating Mother’s parental rights, see id, and prepare a
supplemental opinion outlining a comprehensive § 2511(b) analysis for both
children.
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Decree vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/19
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