In the Interest of: L.Q., Appeal of: S.K. ( 2019 )

J. A12044/19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.Q., A MINOR : IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.K., MOTHER No. 72 WDA 2019
Appeal from the Order Dated December 10, 2018,
in the Court of Common Pleas of Allegheny County
Family Court Division at No. CP-02-DP-0002333-2014
BEFORE: BENDER, P.J.E., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 05, 2019
S.K. ("Mother") appeals from the December 10, 2018 order entered in
the Court of Common Pleas of Allegheny County, Family Court Division, that
denied the oral motion that Mother made at the December 4, 2018
permanency and goal change hearing' requesting that the trial court appoint
separate counsel to represent the legal interests of L.Q., male child, born in
December 2011 ("Child"). We affirm.
The trial court set forth the following:
The family has an extensive history of court
involvement and the case has been court active for
several years. The case was successfully closed for a
brief period but was re -opened in 2017. [C]hild was
adjudicated dependent again on January 10, 2018.
This court has conducted routine permanency
hearings in this matter and has had the opportunity to
observe [C]hild on a number of occasions. [Child]
" In its opinion, the trial court noted that December 4, 2018, was also the date
of the initial hearing on the petition for involuntary termination of Mother's
parental rights. (Trial court opinion, 2/19/19 at 1 n.1.)
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suffers from mental health issues and has had
substantial behavioral issues resulting in multiple
foster home placements.[Footnote 2]
[Footnote 2] [Allegheny County Children,
Youth, and Families ("CYF")] Caseworker
Shayla Jones testified that [Child] had
been placed in five different foster homes
since the case re -opened.
During the Permanency Hearing on December 4th,
2018, the CYF Caseworker, Shayla Jones, testified
that [C]hild reported that he wanted to return to
Mother's care. However, he displayed mixed
emotions about his visits with Mother. Counsel for
Mother requested that separate counsel be appointed
for [C]hild based on a divergence of his legal and best
interests. The court attempted to speak with [C]hild
for the purpose of determining whether there was a
conflict between his legal and best interests. The
court did attempt to engage [Child] in conversation to
determine if [C]hild was competent to direct his legal
representation and if there was a conflict between his
legal and best interests. When questioned by the
court, [C]hild would not answer any questions,
instead continuously repeated the word "no" and
burying his face into Mother's chest.
Trial court opinion, 2/19/19 at 1-2.
On December 10, 2018, the trial court entered an order denying
Mother's oral motion to appoint separate legal counsel for Child based upon
its finding:
that there is no divergence between [C]hild's legal and
best interests and Mother's oral request that separate
counsel for [C]hild be appointed is denied. Based
upon the [c]ourt's observation of [C]hild, it finds
[C]hild is unable to formulate an opinion based upon
his age, emotional state and inability to articulate his
wishes to the court.
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Order of court, 1/10/18.
On January 9, 2010, Mother filed a notice of appeal and a concise
statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i). Subsequently, the trial court filed its
Rule 1925(a)(2)(ii) opinion.
Mother raises the following issue for our review:
Can a trial court deny a childtheir right to unconflicted
representation of their legal interest in a dependency
proceeding by declaring the child lacks the capacity to
direct his legal counsel?
Mother's brief at 6 (full capitalization omitted).
Preliminarily, we note that in In re J'K.M., 191 A.3d 907 (Pa.Super.
2018), this court recently recognized that an order denying a parent's motion
for the appointment of a separate guardian ad /item ("GAL") to represent the
child's best interest in a dependency proceeding is an appealable order under
Pa.R.A.P. 313(b). We, therefore, have jurisdiction over this appeal.
Review in dependency cases requires an appellate
court to accept the findings of fact and credibility
determinations of the trial court if they are supported
by the record, but it does not require the appellate
court to accept the lower court's inferences or
conclusions of law. Accordingly, we review the trial
court's decision under an abuse -of -discretion
standard.
J'K.M., 191 A.3d at 910.
Recently, this court explained that
a dependency court is required by statute to appoint
a GAL, who must be an attorney. 42 Pa.C.S.[A.]
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§ 6311(a). The GAL is authorized to represent both a
child's legal and best interests. Id. Pursuant to
Section 6311(b)(7), the GAL's duties in representing
a child's best interests include making
recommendations to the court regarding a child's
placement needs. However, under
Section 6311(b)(9), the GAL is to represent a child's
legal interests by determining "to the fullest extent
possible," a child's wishes, if those wishes are
ascertainable. Factors that must be considered when
ascertaining a child's wishes, or legal interests, are a
child's age and mental and emotional condition.
42 Pa.C.S.[A.] § 6311(b)(9).
The difficulty arises when, as occurred in this case, the
two interests conflict. We find In re Adoption of
L.B.M., 639 Pa. 428, 161 A.3d 172 (Pa. 2017)
instructive, despite that case involving the
appointment of counsel in termination of parental
rights cases under 23 Pa.C.S. § 2313. Justice Wecht,
the author of the lead opinion in L.B.M., stated that
23 Pa.C.S. § 2313(a) requires the trial court to
appoint counsel for a child in a termination of parental
rights case, and the failure to do so is a structural
error and is not subject to harmless error analysis.
L.B.M., 161 A.3d at 183. In part II -B of the lead
opinion, Justice Wecht concluded that a trial court is
required to appoint counsel to represent a child's legal
interests even when the child's GAL, who is appointed
to represent the child's best interests, is an attorney.
Justice Wecht concluded that the interests are distinct
and require separate representation. Four members of
the Court, Chief Justice Saylor, and Justices Baer,
Todd, and Mundy disagreed with Justice Wecht's strict
application of Section 2313(a); rather, they opined, in
concurring and dissenting opinions, that separate
representation is required only if the child's best
interests and legal interests conflicted. In other
words, a child's GAL may serve as child's counsel
when the GAL's dual role does not create a conflict of
interest. L.B.M., 161 A.3d at 183-193. Thus, a conflict
of interest analysis must be conducted to determine
whether a child's legal interests diverge from the
child's best interests. In re Adoption of T.M.L.M.,
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184 A.3d 585, 2018 PA Super 87, at *4 (Pa. Super.
2018) (remanding where a five-year old child's
preference was equivocal and child's counsel had not
interviewed the child to determine whether his best
interests and legal interests conflicted).
Furthermore, although Section 6311(b)(9) provides
that a dependency GAL has no conflict of interest
when the child's best interests and legal interests
diverge, our Supreme Court suggested in such
instances that the GAL should request appointment as
legal counsel and the assignment of a separate GAL.
L.B.M., 161 A.3d at 175 n.4 (citing Pa.R.J.C.P. 1154
cmt.); see also In Interest of C.P., 2017 PA Super
22, 155 A.3d 631, 634 n.2 (Pa. Super. 2017) ("We
note that if a child's wishes conflict with the GAL's
belief of the best interests of that child, the GAL has a
conflict and the court may separate the representation
by retaining the GAL to act solely as the child's
attorney and appointing a new GAL. Pa.R.J.C.P. 1151
cmt."). Importantly, the Supreme Court suspended
Section 6311(b)(9) to the extent that it conflicts with
Rule 1154. Pa.R.J.C.P. No. 1800(3). Thus, pursuant
to L.B.M., C.P., Rule 1154 and its comment, and the
specific suspension of Section 6311(b)(9), a
divergence between the child's wishes under
42 Pa.C.S.[A.] § 6311(b)(9), and the GAL's
recommendations under 42 Pa.C.S. § 6311(b)(7),
may be considered a conflict of interest for the GAL.
It well settled that "[c]ompetency is the rule and
is
incompetency the exception." Rosche v. McCoy, 397
Pa. 615, 156 A.2d 307, 309 (Pa. 1959). Moreover,
competency is presumed where the child is more than
fourteen years of age. Id. at 310.
J'K.M., 191 A.3d at 913-914.
In J'K.M., the child was 16 years old and presumed competent. (Id. at
914.) The child testified at the dependency proceeding that she wanted to
remain in her mother's care. (Id.) The child explained that she believed the
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system had failed her; that she was raped in foster care; that she did nothing
more than cry while she was in foster care; and that as a result of her
placement in foster care, her grades suffered. (Id. at 914-915.) Despite the
child's presumed competence and her ability to articulate her preferred
outcome and the reasons for her preference, the GAL argued that the child
remain in foster care. (Id. at 915.) Mother then moved for the appointment
of a separate GAL. The trial court denied mother's request. This court
reversed and remanded for the appointment of a separate GAL, finding that
the trial court abused its discretion in concluding that the "divergent opinions"
of the child and the GAL did not constitute a conflict that required the
appointment of a separate GAL. (Id. at 916.)
Unlike J'K.M., however, the trial court in this case denied Mother's
request for appointment of separate counsel to represent Child's legal interest
after it determined that no conflict existed between the Child's legal and best
interests because Child's wishes were not ascertainable. Indeed, the record
reflects that the GAL informed the trial court that Child wanted to be returned
to Mother, but emphasized that Child is six years old and "does not understand
why he is out of [M]other's care." (Notes of testimony, 12/4/18 at 73.) The
GAL also stated her belief that Child "is not competent enough to direct his
legal representation." (Id.) The trial court then attempted to question Child,
but Child neither answered the trial court's questions nor stated his
preference. (Id. at 77-78.) The trial court denied Mother's request for
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appointment of separate legal counsel because it found Child unable to
formulate an opinion as to his preferred outcome based on his age, his
emotional state, and his inability to articulate his wishes. (Order of court,
1/10/18.) Under these circumstances, where a child's legal interest cannot
be determined due to age, emotional state, and inability to articulate a
preference, no conflict can exist between the child's legal and best interests.
Therefore, the trial court properly exercised its discretion in denying Mother's
request for the appointment of separate counsel to represent Child's legal
interest.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Es .
Prothonotary
Date: 8/5/2019
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