In the Int. of: M.L., Appeal of: M.W. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.W., MOTHER :
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: No. 742 EDA 2022
Appeal from the Order Entered February 16, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000290-2020
IN THE INTEREST OF: M.M.L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.W., MOTHER :
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: No. 743 EDA 2022
Appeal from the Decree Entered February 16, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000027-2022
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 14, 2022
Appellant M.W. (Mother) from the decree granting the petition filed by
the Philadelphia County Department of Human Services (DHS) to involuntarily
terminate her parental rights to her minor child, M.M.L. (Child), and the order
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changing Child’s permanency goal to adoption.1 Mother argues that the trial
court erred in concluding that DHS presented clear and convincing evidence
supporting the termination of her parental rights and the goal change from
reunification to adoption. After careful review, we vacate the trial court’s order
and decree and remand for further proceedings consistent with this
memorandum.
We briefly summarize the facts and procedural history of this matter as
follows. The family first came to the attention of DHS on January 17, 2020,
after receiving a general protective services (GPS) report alleging that the
family, which included Child and her sibling M.W. (Sibling), 2 was residing
illegally in a home that lacked electricity, heat, and food. See Pet. For Term.
of Parental Rights, 1/6/22, at Exhibit A, at 1 (unpaginated).3 Ultimately,
Mother was uncooperative with DHS caseworkers’ attempts to engage in
safety planning and providing access to resources.
On February 26, 2020, the trial court appointed Robin Winthrop
Banister, Esquire, as both guardian ad litem (GAL) and legal counsel for Child.
See Order Appointing Counsel, 2/26/20, at 1.
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1 Although J.L. (Father) passed away on March 24, 2021, the trial court
terminated his parental rights on February 16, 2022. See Trial Ct. Op.,
5/11/22, at 2-3.
2 Sibling, who has a different father than Child, is subject to a separate
dependency and termination matter.
3 Exhibit A, DHS’s statement of facts, was admitted as an evidentiary exhibit
at the termination hearing without objection. See N.T. Hr’g, 2/16/22, at 1.
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On May 5, 2020, DHS obtained an order of protective custody (OPC) for
Child and her sibling following a violent altercation at a homeless shelter in
which Mother allegedly became agitated with a security guard, picked up a
stroller in which Child was sitting, and swung it at the guard. See Pet. For
Term. of Parental Rights, Exhibit A, at 3-4. The stroller hit the guard in the
head and Child fell out of the stroller to the ground. See id.
On June 5, 2020, Community Umbrella Agency (CUA) Asociacion de
Puertorriquenos en March (APM) held its initial single case plan (SCP) meeting.
See id. Mother’s parental objectives were listed as follows: ensure Child’s
medical and educational needs were met by signing consents and making sure
Child attended school; participating in a mental health evaluation, following
treatment recommendations, and signing releases and consents; ensuring
that Child received proper mental health treatment and care; attending
scheduled visitations; attending and participating in Achieving Reunification
Center (ARC) services for parenting, housing, and employment; and
complying with all court orders. See id.
The trial court adjudicated Child dependent on August 4, 2020. See
Order of Adjudication, 8/4/20, at 1-2. CUA held a revised SCP meeting on
November 9, 2020, and Mother’s objectives remained the same. See Pet. For
Term. of Parental Rights, Exhibit A, at 5 (unpaginated).
The trial court held a permanency hearing on December 18, 2020.
Mother was once again referred for services including ARC, a drug screen,
psychiatric evaluation, and therapy. The court appointed Jo-Ann Braverman,
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Esquire, to serve as Child’s GAL. See Order Appointing Counsel, 12/18/20,
at 1. On the permanency review order, the court noted that Attorney Banister
was to remain as “counsel for Child only.” See Permanency Review Order,
12/18/20, at 1-2. At a subsequent permanency review hearing, Attorney
Banister was identified as Child’s counsel, and Attorney Braverman as Child’s
GAL. See Permanency Review Order, 5/14/21, at 1.
However, at the July 14, 2021 permanency review hearing, the court
vacated Attorney Banister’s appointment because “her representation is no
longer necessary.” See Permanency Review Order, 7/14/21, at 1-2. The
record reflects that, at subsequent permanency review hearings, Attorney
Braverman continued to be identified as Child’s GAL. See Permanency Review
Order, 9/29/21, at 1; Permanency Review Order, 12/1/21, at 1. The record
does not contain a determination by the trial court about whether there was
a conflict between Child’s best and legal interests and whether Attorney
Braverman could satisfy a dual role as GAL and legal counsel. See, e.g., In
re Adoption of K.M.G., 240 A.3d 1218, 1235-36 (Pa. 2020) (reiterating that
where the orphans’ court has appointed one attorney “to represent both the
child’s best interests and legal interests, appellate courts should review sua
sponte whether the orphans’ court made a determination that those interests
did not conflict.”)
On January 10, 2022, DHS filed petitions to change Child’s permanency
goal to adoption and seeking involuntary termination of Mother’s parental
rights to Child pursuant to Section 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b).
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The trial court conducted an evidentiary hearing on February 16, 2022.
DHS presented the testimony of Cassandra Green, CUA caseworker. Mother
testified on her own behalf. Attorney Braverman was the sole attorney
appearing on Child’s behalf. While questioning Ms. Green, Attorney
Braverman asked, “Now, [Child] in a perfect world would want to be with her
mom, correct?” to which Ms. Green responded, “Correct.” N.T. Hr’g, 2/16/22,
at 21. No further testimony or evidence was presented regarding Child’s
preferences.
At the conclusion of the hearings, the trial court terminated Mother’s
rights to Child pursuant to Section 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b),
and changed Child’s permanency goal to adoption.
Mother timely filed a notice of appeal and Mother’s counsel filed a
statement of intent to file an Anders brief in lieu of a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(c)(4). Nevertheless, the
trial court issued a Pa.R.A.P. 1925(a) opinion addressing the termination of
Mother’s parental rights and the goal change to adoption. On appeal, counsel
has filed an advocate’s brief on Mother’s behalf. Accordingly, we decline to
find that Mother has waived her first through third issues pursuant to Pa.R.A.P.
1925(b).
On appeal, Mother presents the following questions for our review:
1. Whether the trial court committed reversible error, when it
involuntarily terminated Mother’s parental rights where such
determination was not supported by clear and convincing
evidence under the Adoption Act, 23 Pa.C.S. § 2511(a)(1) (2),
(5) and (8)?
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2. Whether the trial court committed reversible error when it
involuntarily terminated Mother’s parental rights without giving
primary consideration to the effect that the termination would
have on the developmental, physical and emotional needs of
the child as required by the Adoption Act, 23 Pa.C.S. §
2511(b)?
3. Whether the trial court abused its discretion in granting a goal
change to adoption, where the goal change from reunification
to adoption was not supported by clear and convincing
evidence?
4. Whether the trial court erred because the evidence was
overwhelming and undisputed that Mother demonstrated a
genuine interest and sincere, persistent, and unrelenting effort
to maintain a parent-child relationship with her child?4
Mother’s Brief at 8 (formatting altered).
We begin by stating our standard of review:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations omitted and formatting
altered). “[T]he trial court is free to believe all, part, or none of the evidence
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4 Mother’s brief does not address her fourth issue or develop argument
pertaining to this issue. Accordingly, she has waived her argument for
purposes of appeal. See, e.g., In re A.P., 920 A.2d 1269, 1275 (Pa. Super.
2007) (finding issue waived where mother failed to develop or cite any
authority in support of argument).
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presented, and is likewise free to make all credibility determinations and
resolve conflicts in the evidence.” In re Q.R.D., 214 A.3d 233, 239 (Pa.
Super. 2019) (citation omitted).
The burden is on the petitioner “to prove by clear and convincing
evidence that [the] asserted grounds for seeking the termination of parental
rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[t]he standard of clear and convincing evidence is
defined as testimony that is so clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without hesitance, of the
truth of the precise facts in issue.” Id. (citation and quotation marks omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We note
that we need only agree with the trial court as to any one subsection of Section
2511(a), as well as Section 2511(b), to affirm an order terminating parental
rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
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Prior to reaching the merits of Mother’s issues, we must first address,
sua sponte, whether pursuant to 23 Pa.C.S. § 2313(a), the trial court
appointed legal counsel to represent Child during the contested involuntary
termination proceeding. K.M.G., 240 A.3d at 1235. Our Supreme Court has
interpreted Section 2313(a) “as requiring ‘that the common pleas court
appoint an attorney to represent the child’s legal interests, i.e. the child’s
preferred outcome.’” Id. (quoting In re T.S., 192 A.3d 1080, 1082 (Pa.
2018)). 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.’” Id. (citing T.S., 192 A.3d at 1082; In re L.B.M.,
161 A.3d 172, 183 (Pa. 2017)).
The Court reiterated that “a single attorney cannot represent a child’s
best interests and legal interests if those interests conflict.” K.M.G., 240 A.3d
at 1236 (citation omitted). As such, the Court concluded, “the orphans’ court
must determine whether counsel can represent the dual interests before
appointing an individual to serve as [Guardian ad litem]/Counsel for a child.”
Id. In addition, the Court held that “where an orphans’ court has appointed
a [Guardian ad litem]/Counsel to represent both the child’s best interests and
legal interests, appellate courts should review sua sponte whether the
orphans’ court made a determination that those interests did not conflict.” Id.
at 1235.
Instantly, neither the adoption docket nor the dependency record reflect
that any counsel was appointed for Child. In the dependency docket, on
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February 26, 2020, the trial court appointed Robin Winthrop Banister, Esquire,
as both guardian ad litem and legal counsel for Child. See Order Appointing
Counsel, 2/26/20, at 1. On December 18, 2020, the court appointed Jo-Ann
Braverman, Esquire, to serve as Child’s GAL. See Order Appointing Counsel,
12/18/20, at 1. On the permanency review order, the court noted that
Attorney Banister was to remain as “counsel for Child only.” See Permanency
Review Order, 12/18/20, at 1-2. However, at a subsequent permanency
review hearing, the court vacated Attorney Banister’s appointment because
“her representation is no longer necessary.” See Permanency Review Order,
7/14/21, at 1-2.
Accordingly, we are unable to determine from the record the manner in
which the trial court appointed Attorney Braverman. The order of appointment
refers to her as the GAL, and she appeared to argue for Child’s best interests
at the termination hearing, suggesting that she was serving as the GAL.
However, the trial court also vacated Attorney Banister’s appointment as
Child’s legal counsel because her services were no longer necessary.
Given that Attorney Braverman was Child’s sole attorney during the
involuntary termination proceeding, we have reviewed the certified record to
determine whether the trial court determined prior to the proceeding that
Child’s best interests and legal interests did not conflict. Nothing in the record
indicates that the trial court fulfilled its duty in this regard consistent with
Section 2313(a), as construed by our Supreme Court in K.M.G. Id., 240 A.3d
at 1236. Therefore, we are unable to fulfill our duty to verify sua sponte that
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the trial court determined that Attorney Braverman could represent Child’s
dual interests without conflict. Id.
Accordingly, we are constrained to vacate the involuntary termination
decree and remand for further proceedings. See Interest of A.J.R.O., 270
A.3d 563, 570-71 (Pa. Super. 2022) (holding that absent determination by
the Orphans’ Court that the child’s legal and best interests could be served by
single attorney appointed as GAL and legal counsel, this Court could not fulfill
duty to verify that such determination was made, and remand was required).
On remand, we direct the trial court to fulfill its duty consistent with Section
2313(a) to determine whether Attorney Braverman may represent both the
best interests and legal interests of Child. If the trial court determines that
no conflict exists between Child’s dual interests, then the court shall re-enter
the termination decree and goal change order as to Mother.5 If the trial court
determines that there is a conflict between Child’s best interests and legal
interests, then the court shall appoint separate legal counsel and conduct a
new involuntary termination hearing as to Mother to provide legal counsel an
opportunity to advocate on behalf of Child’s legal interests pursuant to K.M.G.
Id., 240 A.3d at 1235.
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5 We note that an order terminating Mother’s parental rights would constitute
a final order, appealable to this Court. See A.J.R.O., 270 A.3d at 570 (citing
In re H.S.W.C.-B., 836 A.2d 908, 911 (Pa. 2003) (holding that “an order
terminating or preserving parental rights . . . shall be deemed final when
entered.”)).
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Decree vacated. Order vacated. Case remanded for proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2022
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