In Re: T.M.W. and K.W., Minors, Appeal of: K.R. ( 2018 )

J-S38044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: T.M.W., A MINOR : IN THE SUPERIOR COURT OF
IN RE: K.W., A MINOR : PENNSYLVANIA
:
:
:
:
:
:
APPEAL OF: K.R., NATURAL MOTHER : No. 397 WDA 2018
Appeal from the Order Entered February 12, 2018
in the Court of Common Pleas of Clearfield County
Orphans’ Court at No(s): 3438-2017
3439-2017
BEFORE: BOWES, NICHOLS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 06, 2018
K.R. (Mother) appeals from the order entered February 12, 2018, in
the Court of Common Pleas of Clearfield County, which terminated
involuntarily her parental rights to her minor sons, T.M.W., born in May
2010, and K.W., born in February 2013 (collectively, Children).1 After
review, we vacate and remand for further proceedings consistent with this
memorandum.
Mother has a lengthy history of involvement with Clearfield County
Children, Youth and Family Services (the Agency) dating back to 2000.
N.T., 1/5/2018, at 48. The Agency became involved with Mother most
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The record does not reveal whether the orphans’ court terminated the
parental rights of M.W., Children’s father.
J-S38044-18
recently due to truancy issues involving Children’s older sister, N.H., and due
to poor living conditions in the family’s home. Id. at 58, 62. On February
10, 2016, Mother tested positive for amphetamines and methamphetamines.
Id. She signed a voluntary placement agreement on February 11, 2016,
and Children have remained in foster care since that time. Id. at 58-60.
The juvenile court adjudicated Children dependent on March 9, 2016, and
changed their permanent placement goals from reunification to adoption on
August 19, 2016. Id. at 59-61.
On September 20, 2017, the Agency filed petitions to terminate
Mother’s parental rights to Children involuntarily. The orphans’ court
conducted a hearing on January 5, 2018, during which both Children were
represented by legal counsel, Joshua S. Maines, Esquire, and a guardian ad
litem, Daniel C. Bell, Esquire. Following the hearing, on February 12, 2018,
the court entered an order terminating Mother’s parental rights. Mother
timely filed a notice of appeal on March 9, 2018, along with a concise
statement of errors complained of on appeal.2
____________________________________________
2 Our review of the record indicates that Mother filed one notice of appeal
from the order terminating her parental rights as to both Children. We point
out that the correct procedure in this circumstance is to file separate notices
of appeal for each child. See Pa.R.A.P. 341, Note (“Where … one or more
orders resolves issues arising on more than one docket or relating to more
than one judgment, separate notices of appeal must be filed.”). In a recent
case, our Supreme Court held that the 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.” Commonwealth v. Walker, 185
(Footnote Continued Next Page)
-2-
J-S38044-18
Before reviewing the merits of the issue Mother wishes to raise on
appeal, we must address sua sponte Children’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).
The Children’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 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
(Footnote Continued) _______________________
A.3d 969, 977 (Pa. 2018). However, the Court clarified that it would apply
its holding only “in future cases,” because of decades of prior case law that
seldom quashed appeals for that reason, and because the citation to case
law contained in the note to Rule 341 was unclear. Id. Thus, because
Mother filed her notice of appeal prior to the filing of our Supreme Court’s
decision in Walker on June 1, 2018, we do not quash her appeal.
-3-
J-S38044-18
the child’s legal interests. In re Adoption of L.B.M., 161 A.3d 172, 180
(Pa. 2017). Critically, a child’s legal interests are distinct from his or her
best interests. Id. at 174. While a child’s legal interests are synonymous
with his or her preferred outcome, a child’s best interests must be
determined by the orphans’ court. Id.
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. 184 A.3d at 590. In that case,
the child’s attorney did not attempt to interview him, nor did she set forth
his preferred outcome on the record. Id. at 589-90. The attorney
advocated solely for the child’s best interests during the hearings, rather
than his legal interests. Id. at 590. Finally, the attorney did not file a brief
on appeal, nor did she join a brief filed by another party. Id.
This Court concluded that the attorney’s representation failed to
comply with the requirements of 23 Pa.C.S. § 2313(a) and L.B.M., and
vacated the order terminating the mother’s parental rights. We explained
our decision as follows.
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
-4-
J-S38044-18
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., 184 A.3d at 590.
In this case, despite the appointment of Attorney Maines to represent
Children, we have no basis to conclude that Children’s statutory right to
counsel was satisfied. See In re Adoption of M.D.Q., __ A.3d __, 2018
WL 3322744 at *5 (Pa. Super filed July 6, 2018) (vacating the termination
order and remanding for an additional interview of the children because the
record provided “no basis to conclude that [c]hildren were provided with
counsel who represented their legal interests and took direction from
[c]hildren to the extent possible due to their ages”). At the conclusion of the
hearing, the court asked Attorney Maines for his position regarding the
termination. Counsel provided the following response.
ATTORNEY MAINES: Your Honor, it’s a difficult thing[,] difficult.
THE COURT: Sure it is. These kind of cases are gut-wrenching.
They’re extremely difficult.
ATTORNEY MAINES: I have to agree with [the GAL]. I believe
that the [A]gency has met [its] burden, and I think it comes
down to, with these kids, you know, just getting some finality for
them, getting them to a point where they can have some
permanency. Without a really good foreseeable time line, I just
don’t think it’s realistic.
-5-
J-S38044-18
Id. at 171. While it is somewhat ambiguous, from counsel’s statement it
appears counsel may have misunderstood his role, and substituted his own
judgment instead of advocating for Children’s preferred outcomes. Thus, we
turn to the record to determine whether there is any indication that Children
received the benefit of client-directed, legal-interests counsel as required by
subsection 2311(a).
Unfortunately, the record does not provide us with any information
regarding Children’s preferred outcomes. T.M.W. was seven and one-half
years old at the time of the termination hearing, while K.W. was just under
five years old. Thus, Children are old enough to have the potential to be
form and articulate a preferred outcome. See In re T.S., __ A.3d __, 2018
WL 4001825 at *7 (Pa. 2018) (distinguishing two- and three-year-old
children whose young age rendered them unable to form “a subjective,
articularable preference” from “children as young as five or six years of age
[who have] opinions which are entitled to weight in legal proceedings
concerning their custody”) (citing Pa.R.P.C. 1.14, Explanatory Comment 1).
Counsel did not indicate on the record that he interviewed Children in order
to discern their preferred outcomes. He also did not set forth Children’s
preferred outcomes on the record, nor did he state that he was unable to
determine their preferences. Counsel noted that Children were present at
the courthouse in case the orphans’ court wished to examine them, but
-6-
J-S38044-18
stated that, because of their ages, he did not “believe that an examination of
them is needed here.”3 N.T., 1/5/2018, at 125.
Compounding our inability to determine Children’s legal interests is
counsel’s failure to file a brief advocating for those interests on appeal. 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.”). This
Court received a letter from counsel indicating that he would not be filing a
brief, but counsel’s letter provides no clarification as to what Children’s
preferred outcomes may have been. Counsel’s letter states only that
“[counsel] would submit that the opinion of the [orphans’ court] sufficiently
sets forth adequate grounds for termination under 23 Pa.C.S. § 2511.”
Letter, 5/25/2018, at 1.
Further complicating this matter is the dearth of evidence in the record
addressing Children’s relationship with Mother. 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 of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
____________________________________________
3 L.B.M., supra, does not require an on-the-record examination of a child.
However, the absence of an on-the-record examination is further indication
that the record is not helpful in determining whether counsel’s position was
consistent with Children’s preferred outcomes, and thus whether counsel
understood he was to follow Children’s directives instead of his own belief as
to what was in Children’s best interest.
-7-
J-S38044-18
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).
Before terminating parental rights pursuant to subsection 2511(b), our
case law requires that the orphans’ court consider whether the child has a
bond with his or her parent, and what effect severing that bond may have on
the child. In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). If the record
lacks the evidence necessary to conduct a proper bond analysis, a remand
for an additional hearing is required. See In re E.M., 620 A.2d 481 (Pa.
1993) (reversing and remanding “for a reevaluation of the needs and welfare
of the children, taking into account whatever bonds may currently exist
between the children and appellant, as well as other factors having bearing
upon whether termination is proper”); In re C.P., 901 A.2d 516, 523 (Pa.
Super. 2006) (“[W]e are constrained to reverse and remand this matter to
give the parties an opportunity to present further testimony regarding the
emotional bonds between Mother and C.P., and the effect a termination of
parental rights would have on C.P.”). A conclusory analysis of the child’s
needs and welfare without reference to these issues is insufficient. In re
Adoption of A.C.H., 803 A.2d 224, 229-30 (Pa. Super. 2002).
In the instant matter, Mother testified that she was unable to visit with
Children between April 2016 and February 2017 due to her incarceration.
-8-
J-S38044-18
N.T., 1/5/2018, at 141-44. When Mother began visiting with Children after
her release, Agency caseworker, Crystal Vicklund, testified that she was
“more of a friend to [C]hildren than a parent” because she coddled them and
had a difficult time redirecting their negative behaviors. Id. at 67-68. Ms.
Vicklund explained that Children’s behaviors began to deteriorate
considerably during the period that they were visiting with Mother.4 Id. at
70. Children’s Aid Society family support services manager, Christina
Woodel, added that Mother did not interact with Children during visits unless
they came to her first. Id. at 105. Other than this brief testimony, the
record is silent as to Children’s relationship with Mother.
Finally, our review of the opinion submitted by the orphans’ court
reveals that it failed to conduct an adequate analysis of subsection 2511(b).
The court found that Mother’s substance abuse issues, lack of stable
housing, and poor parenting skills have prevented her from providing for
Children’s needs, and that Children’s foster parents have provided for those
needs in Mother’s absence. Orphans’ Court Opinion, 3/14/2018, at 11.
However, the court’s analysis featured no discussion of whether Children
____________________________________________
4 Ms. Vicklund testified that the Agency suspended Mother’s visits upon the
recommendation of T.M.W.’s therapist after a particularly upsetting visit in
June 2017, during which Mother tested positive for the drug THC and got
into an altercation with one of Children’s older siblings because she
purportedly referred to him as “fat.” N.T., 1/5/2018, at 68-69, 80-81.
Thus, it appears that Children had not seen Mother for approximately six
months prior to the termination hearing, yet there was no evidence as to
what sort of impact Mother’s absence from their lives had upon Children.
-9-
J-S38044-18
have a bond with Mother, the nature of that bond, or the effect that severing
that bond would have on Children.
In short, it appears Children’s counsel may not have understood his
role, resulting in a hearing where Children may not have received the benefit
of client-directed counsel advocating for their legal interests. M.D.Q., 2018
WL 3322744 at *5. Furthermore, the agency failed to set forth evidence
bearing on all of the needs and welfare factors, resulting in an erroneous
needs and welfare analysis by the orphans’ court. E.M., 620 A.2d at 485;
In re C.P., 901 A.2d at 523. Due to these issues, we vacate the order
terminating Mother’s parental rights and remand to the orphans’ court for a
new hearing.
On remand, counsel must interview Children and attempt to discern
their preferred outcomes.5 M.D.Q., 2018 WL 3322744 at *5. Counsel must
____________________________________________
5 This Court has stated the following with regard to interviews of children by
legal counsel.
We recognize that ascertaining a child’s position is a difficult
task. It often entails undergoing a delicate conversation that
needs to be undertaken with sensitivity and skill, and differs
from an interview that an attorney would conduct of an adult.
Nevertheless, our legislature has tasked legal-interests counsel
with this job. See L.B.M., 161 A.3d at 180 (holding, in a section
joined by five Justices, that “when a child’s relationship with his
or her birth family could be severed permanently and against the
wishes of the parents, the legislature made the policy judgment,
as is evident from the plain, unambiguous language of the
statute, that a lawyer who represents the child’s legal interests,
and who is directed by the child, is a necessity”). Accordingly, it
(Footnote Continued Next Page)
- 10 -
J-S38044-18
then notify the orphans’ court of those preferences. If Children are unable
or unwilling to provide preferred outcomes, counsel must inform the
orphans’ court of that as well. If for some reason Children’s current counsel
is unable or unwilling to undertake these obligations, the orphans’ court
must appoint new counsel. In addition, if counsel determines that Children
have differing preferred outcomes, the orphans’ court must appoint separate
legal counsel for each child. Any attorney or attorneys appointed to
represent Children’s legal interests must advocate for those interests
actively during all subsequent proceedings.
Once Children’s legal interests are clear, the orphans’ court must
conduct a new hearing for two purposes: (1) so that Children may have the
benefit of counsel as contemplated by 23 Pa.C.S. § 2313(a) and L.B.M., and
(2) so that the orphans’ court may properly analyze Children’s needs and
welfare pursuant to subsection 2511(b) in accordance with E.M. and C.P.6
(Footnote Continued) _______________________
is incumbent upon legal-interests counsel to do all that counsel
can to create a relationship of trust between counsel and client,
and then explain, commensurate with a child’s level of
development, the nature of the legal proceedings, followed by
specific questions to ascertain the child’s desired outcome and
the direction the child wants counsel to take. We observe that
Pa.R.P.C. 1.14 provides some guidance for representation of
clients with diminished capacity.
M.D.Q., 2018 WL 3322744 at *4 n.2.
6 If, after ascertaining Children’s legal interests, counsel determines that
Children’s legal interests are consistent with the result of the first hearing,
(Footnote Continued Next Page)
- 11 -
J-S38044-18
During the hearing, in addition to other evidence, the Agency must present
evidence addressing whether Children have a bond with Mother, the nature
of that bond, and what effect severing that bond may have on Children.
E.M., 620 A.2d at 485; C.P., 901 A.2d at 523. The other parties may
present evidence supporting or rebutting the Agency’s evidence if they so
choose. The orphans’ court must then conduct a proper subsection 2511(b)
analysis that includes all of the applicable considerations required by the
statute and case law before granting or denying termination. Id.
Order vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2018
(Footnote Continued) _______________________
counsel must inform the orphans’ court. In that instance, there is no need
to conduct a new hearing as to grounds pursuant to subsection 2511(a),
because Children’s legal interests would have been represented adequately
in the first hearing. See T.M.L.M., 184 A.2d at 591 (holding the orphans’
court “shall conduct a new hearing only if it serves the ‘substantive purpose’
of providing [the c]hild with an opportunity to advance his legal interests
through his new counsel”) (citing In re N.A.G., 471 A.2d 871, 875 (Pa.
Super. 1984)). However, in such event that a new hearing as to grounds is
unnecessary, the orphans’ court still must conduct a hearing to supplement
the record regarding Children’s needs and welfare in accordance with E.M.
and C.P.
- 12 -