In the Interest of: R.B., A Minor, Appeal of: R.H. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: R.B., A MINOR, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
APPEAL OF: R.H., NATURAL MOTHER
No. 1478 WDA 2017
Appeal from the Order entered September 11, 2017,
in the Court of Common Pleas of Allegheny County,
Orphans' Court, at No(s): CP-02-AP-0000095-2017.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 30, 2018
Appellant, R.H. (“Mother”), appeals the order involuntarily terminating
her parental rights to her son, R.B. (“Child”), born in October of 2014,
pursuant to 23 Pa.C.S.A. § 2511(a)(2); (a)(8) and (b). For the reasons that
follow, we affirm.
In its Pa.R.A.P. 1925(a) opinion, the trial court set forth the following
facts and procedural history relevant to Mother’s appeal:
[Child] in this matter came to the attention of the Allegheny
County Office of Children, Youth and Families (“CYF”) on
February 24, 2016, when the Braddock Police department
contacted CYF concerning an unidentified child who had
been dropped off at the police station. CYF obtained an
[Emergency Custody Authorization] on the same day and
was able to identify [Child] when Mother contacted the
caseworker. [Child] was adjudicated dependent on April 13,
*Former Justice specially assigned to the Superior Court.
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2016. At the time of adjudication, drug and alcohol
treatment was identified as the primary issue to be
addressed. Goals were also established for Mother to obtain
mental health treatment, maintain consistent visitation,
attend a parenting program, and acquire stable housing. […]
The evidence at the [termination] hearing showed that
Mother has not successfully completed any of the
established goals. Mother failed to successfully attend or
complete a mental health treatment program. Mother also
failed to complete a parenting program. At the time of the
hearing, Mother had not secured stable housing. Although
[Child] was placed in February 2016, the CYF supervisor
testified that Mother had not begun consistent visitation
until a few months prior to the September 2017 hearing.
Finally, Mother, who has struggled with drug addiction for
the past ten years, failed to attend and complete
recommended drug and alcohol treatment. Mother did not
appear for 18 to 20 requested drug and alcohol screens.
Mother’s lack of progress toward any of the established
goals persisted through the duration of the case.
Trial Court Opinion (“T.C.O.”), 12/17/17, at 1-3 (record citations omitted).
Throughout the dependency proceedings, Child was represented by a
staff attorney from KidsVoice who has served in the role of guardian ad litem
(“GAL”). Upon Mother’s indication that she would contest the termination of
her rights, the trial court considered the appointment of legal counsel for Child.
KidsVoice requested to be appointed; since Child was only two years old,
KidsVoice argued that Child’s legal interests and best interests were aligned.
CYF did not object, but Mother did and requested that the trial court appoint
separate counsel. The trial court denied Mother’s request and appointed
KidsVoice as legal counsel. The trial court granted CYF’s petition to terminate
Mother’s parental rights on September 11, 2017.
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On appeal, Mother does not contest that grounds existed to terminate
her parental rights, per 23 Pa.C.S.A. § 2511(a)(2); (a)(8). She only raises
the following issues:
1. Did the trial court abuse its discretion and/or err as a
matter of law in appointing KidsVoice as counsel for [Child]
when an apparent conflict between the legal interests of
[Child] and the interests of KidsVoice in representing the
best interests of [Child] in the underlying dependency
proceedings was raised by Mother?
2. Did the trial court abuse its discretion and/or err as a
matter of law in concluding that termination of Mother’s
parental rights would serve the needs and welfare of [Child]
pursuant to 23 Pa.C.S.A. § 2511(b)?
Mother’s Brief, at 6.
Mother’s first contention is that the trial court ran afoul of our Supreme
Court’s recent decision in In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017),
in which the 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).
Section 2313(a) provides:
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 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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23 Pa.C.S.A § 2313(a).
Appointment of counsel representing the child is mandatory, and the
court’s failure to do so is legal error. In re Adoption of T.M.L.M., --- A.3d -
--, 2018 Pa. Super. 87 (Pa. Super. Apr. 13, 2018)1 (citing In re Adoption
of G.K.T., 75 A.3d 521, 526 (Pa. Super. 2013)) (see also In re E.F.H., 751
A.2d 1186, 1189–90 (Pa. Super. 2000)). See also In re Adoption of N.A.G.,
324 Pa. Super. 345, 471 A.2d 871 (1984) (holding 23 Pa.C.S.A. § 2313(a)
creates a statutory right for a child to have counsel appointed who actively
advances his or her needs and welfare and owes loyalty exclusively to him or
her).
In a fractured opinion, our Supreme Court recently interpreted 23
Pa.C.S.A. § 2313(a) in L.B.M., supra, 161 A.3d 172. In Section I of L.B.M.,
a section joined by five justices, the Court held that courts must appoint
counsel to represent the legal interests of any child involved in a contested
involuntary termination proceeding pursuant to 23 Pa.C.S.A. § 2313(a).
L.B.M., 161 A.3d at 180. In Section II–A of the opinion, a section joined by
five justices, Justice Wecht 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.
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1We recognize that the orphans’ court did not have the benefit of reading this
opinion prior to its termination hearing.
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Critically, the Justices disagreed on whether the role of counsel may be
filled by a guardian ad litem (GAL) who also represents child's best interests.
In the Court's lead opinion, Justice Wecht, joined by Justices Donohue and
Dougherty, opined that a child's legal interests cannot be represented by a
GAL. Id. at 180–82. However, the Court's remaining four Justices disagreed
with that portion of the lead opinion, and opined, in a series of concurring and
dissenting opinions, that a child's dependency GAL may serve as his or her
counsel, so long as the GAL's dual role does not create a conflict of interest.
Id. at 183–93. See also In re D.L.B., 166 A.3d 322, 329 (Pa. Super. 2017)
(interpreting L.B.M. and declining to remand for appointment of additional
counsel for child who was represented by an attorney who advocated for
child's non-conflicting best and legal interests).
A majority of the justices in L.B.M. noted that there are times where a
child may be too young to express his or her wishes and thus too young to
have divergent legal interests and best interests. 161 A.3d 172, 181. This was
the case in D.L.B., supra. In that matter, we ruled there was no error when
the orphans’ court appointed only a GAL, but failed to appoint legal counsel.
The critical difference in In re D.L.B. is that the child in that case was only
eight months old at the time of the termination. We have held that a child
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who was nearly six years old was old enough to articulate a preferred
outcome. See T.M.L.M., 2018 Pa. Super. 87, at 4.2
Our review of the record reveals that the subject child in this case was
similarly too young to have divergent best and legal interests. At the time of
the termination hearing, Child was approximately a month shy of his third
birthday. He spent the first 16 months of his life in Mother’s care. Then he
was removed by CYF and spent another 18 months outside of her care. As
both this Court and our Supreme Court have articulated, this is the type of
child who is too young or too cognitively unable to express his wishes. While
this case poses a factual distinction from our cited precedents – namely, that
Cynthia Moore purported to have represented both Child’s legal and best
interests – we find the distinction to be irrelevant in this case. The trial court
did not err in denying Mother’s request for a separate appointment. Because
this child was too young to have divergent interests, we presently decline the
invitation to address whether Mother followed proper procedure to have the
KidsVoice GAL disqualified as counsel. See T.C.O., at 5, Footnote 25.
Mother argues that D.L.B. was wrongly decided. See Mother’s Brief, at
22. “It is beyond the power of a Superior Court panel to overrule a prior
decision of the Superior Court, except in circumstances where intervening
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2 We note that there is a pending matter before an en banc panel of this Court.
We may decide this case without further delay as the en banc panel deliberates
a matter concerning older children where no appointment of legal counsel was
ever made. Here, the case involves both a child too young to have divergent
interests, as well as an actual appointment of legal counsel – albeit counsel
who represented the child’s legal and best interests.
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authority by our Supreme Court calls into question a previous decision of this
Court.” See, e.g., Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super.
2006). Thus, we cannot overrule D.L.B., and Mother’s first issue is without
merit.
We turn now to Mother’s second issue and to the substantive case. We
review an order terminating a parent’s rights for an abuse of discretion or
error of law. In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). We must
accept the credibility determinations and factual findings of the trial court that
are supported by the record. Id. This Court may not reverse a termination
order simply because we would have reached a different result based on the
same facts. Id.Under section 2511 of the Adoption Act, the trial court must engage in
a bifurcated process. First, the trial court must examine the parent’s conduct
under section 2511(a). In re Adoption of R.J.S., 901 A.2d 502, 508 (Pa.
Super. 2006). The burden of proof is on the petitioner to establish by clear
and convincing evidence the existence of grounds for termination under
section 2511(a). In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003). If
the trial court finds termination is warranted under section 2511(a), it must
then turn to section 2511(b) and determine if termination of the parent’s
rights serves the child’s needs and welfare. In re I.E.P., 87 A.3d 340, 344
(Pa. Super. 2014). Instantly, Mother does not contest that the grounds for
termination were unproven. She only contests that termination of her rights
would not meet the needs and welfare of Child.
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We now turn to subsection (b), which states:
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.
23 Pa.C.S. § 2511(b). Under section 2511(b), we inquire whether termination
of parental rights would best serve the developmental, physical and emotional
needs and welfare of the child. In re C.M.S., 884 A.2d 1284, 1286-87 (Pa.
Super. 2005). Needs and welfare is a legal concept denoting certain minimum
requirements to which all children are entitled, including a tangible dimension
– e.g., adequate housing, clothing and food – and an intangible dimension –
e.g., love, comfort, security and stability. In re T.S.M., 71 A.3d 251, 267
(Pa. 2013) (citation omitted). “Intangibles such as love, comfort, security,
and stability are involved in the inquiry into the needs and welfare of the
child.” C.M.S., 884 A.2d at 1287 (citation omitted).
The mere finding of a parent-child bond does not preclude termination
of parental rights. Rather, the trial court must examine the status of the bond
to determine whether its termination “would destroy an existing, necessary
and beneficial relationship.” In re Adoption T.B.B., 835 A.2d 387, 397 (Pa.
Super. 2003). “[A] court may properly terminate parental bonds which exist
in form but not in substance when preservation of the parental bond would
consign a child to an indefinite, unhappy, and unstable future devoid of the
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irreducible minimum parental care to which that child is entitled.” In re J.W.,
578 A.2d 952, 958 (Pa. Super. 1990) (emphasis in original). Expert testimony
is not required for the trial court to determine if there is a positive bond
between a parent and his child. In re K.K.R.-S., 958 A.2d 529, 533 (Pa.
Super. 2008).
In the instant matter, this child was nearly three years old at the time
of the TPR hearing. He had been in foster care for the previous 18 months.
Mother hardly visited Child except in the few months immediately prior to the
termination. During this time apart from her child, Mother admitted to
continued drug use and admitted that she “can barely take care of herself.”
See N.T., 9/5/17, at 23. The forensic psychologist found that Mother does
not consider her actions. Id., at 49. While Child recognizes his Mother,
referring to her as “Mommy,” this bond is not the beneficial sort that would
preclude a termination of rights. To the extent that Child would experience a
loss if he could not see Mother again, such a negative effect is entirely
outweighed by the stability and security that termination would bring. Id., at
58. The psychologist further testified that termination of Mother’s rights is
essential for Child’s well-being. Id. Indeed, the trial court found that Child,
whose primary attachment is to his foster parents, is thriving in their care.
Id., at 52; see also T.C.O., at 6. It is clear that no necessary or beneficial
relationship exists between Mother and Child. The trial court relied on sound,
clear and convincing evidence when it determined that termination of the
parental rights would best serve Child’s needs and welfare.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2018
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