In Re: A.L.H., a Minor, Appeal of: J.H. ( 2018 )

J-S43045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.L.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.H., SR., FATHER :
:
:
:
:
: No. 428 WDA 2018
Appeal from the Order January 25, 2018
In the Court of Common Pleas of Allegheny County Orphans' Court
Division
at No(s): CP-02-AP-0000019-2017
IN RE: H.A.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.H., SR., FATHER :
:
:
:
:
: No. 429 WDA 2018
Appeal from the Order January 25, 2018
In the Court of Common Pleas of Allegheny County Orphans' Court
Division at No(s): CP-02-AP-0000018-2017
IN RE: L.J.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.H., SR., FATHER :
:
:
:
:
: No. 430 WDA 2018
Appeal from the Order January 25, 2018
In the Court of Common Pleas of Allegheny County Orphans' Court
Division at No(s): CP-02-AP-0000017-2017
J-S43045-18
BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 28, 2018
J.H., Sr. (Father) appeals from the orders entered January 25, 2018,
which granted the petition of the Allegheny County Office of Children, Youth,
and Families (CYF), and terminated his parental rights to his children, A.L.H.
(born in April of 2012), H.A.H. (born in August of 2013), and L.J.H. (born in
November of 2009) (collectively, Children).1 We vacate the orders and
remand for proceedings consistent with this memorandum.2
We adopt the facts and procedural history set forth by the orphans’
court. See Trial Ct. Op., 4/3/18, at 2-5. By way of a brief background, we
note that the family was first referred to the Allegheny County CYF in
September 2015, following allegations of severe neglect. 3 In October 2015,
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1 The trial court also changed Children’s permanency goal to adoption
pursuant to the Juvenile Act, 42 Pa.C.S. § 6351. However, Father does not
challenge the court’s order changing the permanency goal to adoption.
Accordingly, due to his failure to present argument on this issue in his brief,
it is deemed waived. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super.
2011) (“[W]here an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”); see also In re
M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017).
A.K. (Mother) did not contest the termination of her parental rights or the
change in the permanency goals as to Children, and has not appealed.
2 The case regarding a fourth child, J.H., Jr., was continued after he made a
disclosure of sexual abuse. See Trial Ct. Op., 4/3/18, at 1; see also N.T.,
1/25/18, at 1-15, 144-45.
3The family previously resided in Mercer County, and the Mercer County Office
of Children, Youth, and Families had been involved with the family in 2009,
2011, 2012, 2013, and 2014. See N.T., 1/25/18, at 97-107, 220-21.
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an investigation found that Children were living in deplorable conditions. The
home was filthy and strewn with feces and dirty diapers. Children were
covered in flea bites, and insects were discovered in the home. Other serious
concerns involved medical neglect, Children’s serious developmental delays,
and potential mental health and domestic violence issues with Father and
Mother. Following the investigation, CYF made an emergency shelter request
for Children.
On October 20, 2015, the trial court adjudicated Children dependent as
to Father. Mother, who suffered from anxiety and depression, stipulated to
the finding of dependency. Children were removed from the home, placed in
foster care, and have not lived with Father since that time.
“Father’s goals included obtaining safe and appropriate housing,
visitation, participating in [parenting education], and attending mental health
and domestic violence counseling, which was also to address anger
management.” See Trial Ct. Op. at 3. In 2016, Father’s visitation was
suspended after J.H., Jr., made allegations of sexual abuse against him and
paternal grandfather. However, the allegations were ultimately determined
to be unfounded.
On February 15, 2017, CYF filed petitions seeking to terminate Father’s
and Mother’s parental rights. In July 2017, the trial court appointed Lynn
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Sherry, Esq., to represent the legal interests of H.A.H. and A.L.H. and
Margaret Gold, Esq., to represent the legal interests of L.J.H. 4
On January 25, 2018, the trial court held a hearing on the termination
petition. Father was represented by counsel. See N.T. at 1. In support of its
petition, CYF presented the testimony of Vickie Morris, a permanency
specialist, and Joanna Bucci, a CYF caseworker. See N.T. at 27, 91. Father
testified on his own behalf. Attorneys Sherry and Gold were present and
cross-examined the witnesses. Following the presentation of evidence, the
court granted the petitions pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8), and
(b), and entered decrees terminating Father’s parental rights.
On February 22, 2018, Father contemporaneously filed a timely notice
of appeal and a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed its 1925(a) opinion on
April 3, 2018.
Prior to considering Father’s issues in this appeal, however, we address
sua sponte whether the representation of Children provided by Attorney
Sherry and Attorney Gold satisfies the requirement of 23 Pa.C.S. § 2313(a).
See In re K.J.H., 180 A.3d 411, 414 (Pa. Super. 2018) (holding that this
Court must raise sua sponte the issue of a child’s right to counsel).
Section 2313(a) provides:
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4A guardian ad litem (“GAL”) had been previously appointed to represent
Children during dependency proceedings.
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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.
23 Pa.C.S. § 2313(a).
Our Supreme Court has highlighted the distinction between “counsel”
representing a child’s legal interests and the guardian ad litem representing a
child’s best interests. See In re Adoption of L.B.M., 161 A.3d 172, 181 (Pa.
2017) (plurality). 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. Id. at 174 Since L.B.M., this Court has clarified the requirements
appointed legal counsel must fulfill 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).
In T.M.L.M., an attorney served dual roles as guardian ad litem and
legal counsel for the child, who was under six years old at the time. Id. at
587-90. However, the attorney did not attempt to interview the child, set
forth the child’s preferred outcome, or advocate for the child’s legal interests
during the hearings. Id. at 588-90. Instead, the attorney focused solely on
the child’s best interests. Id.
The T.M.L.M. Court concluded that the child had been deprived of his
statutory right to counsel, noting that
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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.
Id. at 590 (citation omitted). Accordingly, we vacated the order terminating
the mother’s parental rights and remanded for appointment of legal counsel.
Id. at 591; see also In re Adoption of M.D.Q., 192 A.3d 1201 (Pa. Super.
2018) (vacating and remanding where the record did not indicate that counsel
attempted to ascertain the children’s preferences and the record did not reflect
the children’s legal interests); see also In re Adoption of D.M.C.,192 A.3d
1207 (Pa. Super. 2018) (vacating and remanding where the record was
unclear in what capacity attorney had been appointed to represent children
and whether attorney had ascertained the children’s legal interests prior to
hearing).
More recently, the Pennsylvania Supreme Court, in In re T.S., 192 A.3d
1080 (Pa. 2018), reaffirmed several aspects of L.B.M., noting:
Although multiple opinions were filed in L.B.M., 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.,
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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., 192 A.3d at 1082 (footnotes omitted).
In T.S., Court considered whether separate legal counsel was required
to represent the children, who were two and three years old at the time of the
termination heading. See id. at 1083-84. The T.S. Court held:
a child’s statutory right to appointed counsel under Section
2313(a) of the Adoption Act is not subject to waiver. We
additionally reaffirm certain principles agreed upon by a majority
of Justices in L.B.M., namely, that 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. As illustrated by the present dispute,
moreover, if the preferred outcome of a child is incapable of
ascertainment because the child is very young and pre-verbal,
there can be no conflict between the child’s legal interests and his
or her best interests; as such, the mandate of Section 2313(a) of
the Adoption Act that counsel be appointed “to represent the
child,” 23 Pa.C.S. § 2313(a), is satisfied where the court has
appointed an attorney-guardian ad litem who represents the
child’s best interests during such proceedings.
Id. at 1092-93.
Here, at the time of the hearing, L.J.H. was eight years old, A.L.H. was
five years old, and H.A.H. was four years old, and there was no indication in
the record that they would be unable to express their preferred outcomes.
Although each child has some developmental delays, the record indicates that
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they are articulate and communicative. Children’s appointed legal counsel,
however, did not indicate that they attempted to interview any child or discern
their preferences.
Moreover, at the close of the hearing, Children’s counsel argued that
termination of Father’s parental rights was in Children’s best interests. N.T.
at 212-13, 216-17. Neither counsel indicated that they consulted with and
ascertained Children’s preferences, or otherwise referenced Children’s wishes
during their closing statements. Id. For example, in response to the court’s
questioning about whether Father would be allowed visitation with the
Children, Attorney Gold indicated that it was up to L.J.H.’s potential adoptive
parents, and Attorney Sherry indicated that, without the guardian ad litem
present, she was reluctant to take a position on behalf of the girls. Id. at
247.
Before this Court, both counsel have filed briefs on Children’s behalf.
However, the briefs address the best interests of Children only, and do not
express any preference or interests of Children, or indicate that either counsel
spoke with or interviewed Children. See T.M.L.M., 184 A.3d at 590
(“Counsel’s duty to represent a child does not stop at the conclusion of the
termination of parental rights hearing.”); see aso Brief for Appellees A.L.H.
and H.A.H. at 13-31; see also Brief for Appellee L.J.H. at 15-23. Counsel
have not advocated for Children’s legal interests on appeal.
Accordingly, we are constrained to vacate the orders terminating
Father’s parental rights. See T.M.L.M., 184 A.3d at 590-91. On remand,
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Children’s counsel must interview Children, attempt to discern their preferred
outcomes, and communicate this information to the court. 5 In the event
counsel are unavailable to Children, new counsel shall be appointed by the
trial court. In the event counsel determines that Children prefer different
outcomes, the court must appoint separate counsel for each child.
If Children’s preferred outcomes are consistent with the result of the
prior proceedings, the court may supplement the record with a statement of
Children’s legal interests and re-enter its termination orders. If Children’s
preferred outcomes are inconsistent with the previous results, a new hearing
shall be conducted. See T.M.L.M., 184 A.3d at 591 (ordering the trial court
to conduct a new hearing only if it serves the “substantive purpose” of
providing the child with the opportunity to advance his legal interests through
new counsel).
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5 The record does contain some indication as to what the preferences of
Children may be. For example, L.J.H. did not show emotion when saying he
missed his father, and does not engage in self-hating behavior as often as
when he was first placed in care. N.T. at 41-42, 66. L.J.H. stated that, if he
was not going to be returned to his parents, he would want to stay with his
foster parents. Id. at 70. H.A.H. refers to her foster parents as Mommy and
Daddy, and, although she refers to Father as “Daddy,” she does not want to
talk about him. Id. at 45. She refers to Mother by her first name, and does
not want to visit with her any longer. Id. at 45-47. H.A.H. uses her foster
parents’ last name at school. Id. at 61. She has stopped self-injurious
behaviors like pulling out her hair. Id. at 56. A.L.H. does not want to talk
about Father and has also asked to use the last name of her foster parents at
school. Id. at 52, 60. Nevertheless, T.M.L.M. makes clear that it was
counsels’ duties to ascertain, express, and, if necessary, advocate for
Children’s legal interests. See T.M.L.M., 184 A.3d at 590.
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Orders vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judge Stabile joins the memorandum.
Judge Dubow files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2018
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