In the Interest Of: C.J.L., Appeal of: R.H.

J-A18027-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTEREST OF: C.J.L. A/K/A : IN THE SUPERIOR COURT OF
C.L., A MINOR : PENNSYLVANIA
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APPEAL OF: R.H., MOTHER :
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: No. 168 EDA 2018
Appeal from the Decree December 7, 2017
in the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000976-2016,
CP-51-DP-0002360-2015, FID: 51-FN-0019119-2015
IN THE INTEREST OF: R.T.B. A/K/A : IN THE SUPERIOR COURT OF
R.B., A MINOR : PENNSYLVANIA
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APPEAL OF: R.H., MOTHER :
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: No. 174 EDA 2018
Appeal from the Decree December 7, 2017
in the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000977-2016,
CP-51-DP-0002359-2015, FID: 51-FN-0019119-2015
BEFORE: STABILE, J., STEVENS, P.J.E.,* and STRASSBURGER, J.**
DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 10,
2018
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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Because my independent review of the record does not reveal an issue
of arguable merit, I would affirm the decrees terminating Mother’s parental
rights to Children and grant counsel’s petition to withdraw.
Here, the Majority concludes that “Children did not receive the benefit
of counsel representing their legal interests and directed by them” because
“the record contains no clear indication of the Children’s preferences.” Majority
at 14. However, our Supreme Court’s decision in In re Adoption of L.B.M.,
161 A.3d 172 (Pa. 2017) (plurality), its more recent decision in In re T.S., __
A.3d __, 2018 WL 4001825 (Pa. 2018), and this Court’s interpretations of
these cases do not demand such a requirement.
We begin with L.B.M. In that seminal case, our Supreme Court held
“that [23 Pa.C.S. § ]2313(a) requires the appointment of counsel who serves
the child’s legal interests in contested, involuntary [termination of parental
rights (TPR)] proceedings.” 161 A.3d at 180. “[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.” In re Adoption of T.M.L.M., 184 A.3d
585, 588 (Pa. Super. 2018).
Recently, in In re T.S., our Supreme Court offered the following.
[D]uring 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. …
[M]oreover, if the preferred outcome of a child is incapable of
ascertainment because the child is very young and pre-verbal,
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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 *10.
In the instant matter, the Family Court appointed legal counsel, Attorney
Jeffrey Bruch, to represent Children’s legal interests. In addition, the Family
Court appointed a guardian ad litem (GAL), Attorney Jaclyn Hart, who
represented the Children’s best interests. However, according to the Majority,
Attorney Bruch’s representation did not comply with this Court’s requirements
for an attorney representing a Child’s legal interests.
In T.M.L.M., we expounded upon the duties of counsel:
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 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, pursuant to the
Supreme Court’s opinion in Sections I and II–A of L.B.M., 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. L.B.M., 161 A.3d at 174, 180.
184 A.3d at 590.
Here, we agree with the Majority that the record does not state
Children’s preferred outcomes. It also does not demonstrate that Attorney
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Bruch attempted to interview his clients and ascertain their preferred
outcomes.1 However, we have no reason to believe that these things did not
occur, which makes this case distinguishable from other cases cited by the
Majority, where this Court required a remand.
We begin with T.M.L.M. In that case, the orphans’ court appointed
Attorney Suzann Lehmier to represent the child at the TPR hearing. Attorney
Lehmier stated on the record at the TPR hearing that she did not meet with or
talk to her client. 184 A.3d at 589. She further told the trial court her “only
concern [is] his best interests.” Id. (emphasis omitted). Thus, this Court
concluded that Attorney Lehmier’s representation of the child was deficient.
We next consider In re Adoption of M.D.Q., __ A.3d __, 3322744 (Pa.
Super. 2018). In that case, the children’s father and stepmother petitioned
to terminate the mother’s parental rights. Attorney Courtney Kubista was
appointed as “Attorney for the Children.” Id. at n.1. The record revealed that
Attorney Kubista did indeed interview the children, who were eight and six-
and-a-half years old, and subsequently concluded that “termination was
warranted in this matter in regard to the best interests of [c]hildren.” Id. at
*4. This Court’s review of the record revealed that counsel’s representation
of children was deficient because despite the fact she was appointed as
counsel for the children, she advocated for their best interests without
1At the time of the hearing, Children were eight-and-a-half and four-and-a-
half years old.
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providing an explanation to the court as to why. Furthermore, counsel’s
statements to the orphans’ court and this Court suggested that she was
speculating as to Children’s preferred outcomes instead of following their
direction. Additionally, the record indicated a potential conflict between the
position counsel took and the position of one of the children. Thus, on appeal,
this Court could not conclude that the children “were provided with counsel
who represented their legal interests and took direction from [them] to the
extent possible due to their ages.” Id.
Finally, we consider In re Adoption of D.M.C., __ A.3d __, 2018 WL
3341686 (Pa Super. 2018). That case involved two children, one who was 12
and one who was almost 4. The orphans’ court appointed an attorney as
“court-appointed counsel” for the children. Id. at *2. That attorney later
withdrew and new counsel was appointed. However, in neither instance was
it clear whether counsel was appointed as legal counsel or best-interests
counsel, especially because counsel sometimes referred to himself as a GAL
for the children. Furthermore, the record reveals that counsel spoke one time
to the older child, and that conversation occurred the night before the TPR
hearing. In that call, according to counsel, the child indicated “he’s ready for
permanency.” Id. at *3. Thus, the attorney told the orphans’ court that
“permanency” was in his “best interests.” Id. Counsel also suggested a post-
adoption contract agreement.
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On appeal, counsel indicated that the child wanted to be adopted, but
also wanted to remain in contact with his mother. Based on the foregoing,
this Court concluded that it is unclear whether the child “received the benefit
of [his] statutorily-required right to client-directed counsel serving [his] legal
interests.” Id. at *5. The failure of the orphans’ court to clarify counsel’s role,
along with counsel’s inherently conflicting representations, required this Court
to remand.
We now turn to the facts of the instant case. Here, as indicated supra,
Children were appointed both legal counsel and a GAL. The GAL asked
questions at the TPR hearing. Although counsel did not ask any questions at
the hearing or file a brief on appeal, there is nothing in the record that would
suggest that Children’s positions did not align with their best interests or that
counsel failed to perform his duties. Thus, the situation in this case is
distinguishable from the aforementioned, and I would conclude that there is
no issue of arguable merit with respect to Children’s representation by legal
counsel.
That being said, I would be remiss not to point out that it is often difficult
for this Court to discern whether the attorney is advocating for a child’s
preferred outcome (i.e., legal interests), the attorney’s opinion as to what is
in the child’s best interests, or some combination of the two. The child has a
statutory right to client-directed counsel who must advocate solely for the
child’s preferred outcome regardless of what the attorney personally believes
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is in the child’s best interests, unless there is no conflict between a child’s
legal interests and best interests, see T.S., supra. Thus, it is important that
the record is clear as to what position the attorney is advancing. As this is an
ever-changing area of law and this Court attempts to expedite these cases in
order for children to achieve permanency, I suggest that it is best practice for
attorneys and orphans’ courts to place on the record a brief explanation of
which attorney represents which child, the capacity in which the attorney
represents the child, and whether the attorney is advocating for a child’s
preferred outcome, best interests, or both.2
In addition, “[c]ounsel’s duty to represent a child does not stop at the
conclusion of the termination of parental rights hearing.” In re Adoption of
T.M.L.M., 184 A.3d 585, 590 (Pa. Super. 2018); see also In re M.T., 607
A.2d 271, 276 (Pa. Super. 1992) (observing that child’s counsel abdicated his
legal responsibilities to his client because counsel, inter alia, failed to file a
brief, indicate that he joined another party's brief, or otherwise notify this
Court of his client’s position). Thus, it is also best practice for counsel to file
a brief or join a brief on appeal to this Court. Moreover, if a child’s position
2For example, when the attorney enters a verbal appearance at the beginning
of the hearing or argues a position at the conclusion of the hearing, the
attorney could state his or her name, the firm or organization for which he or
she works, the child he or she represents, whether the child supports or
opposes the TPR petition or has a position that is more nuanced or incapable
or ascertainment, and whether the position advocated by the attorney is based
upon the client’s preferred outcome or the attorney’s opinion regarding the
child’s best interests.
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differs from the outcome of the termination proceeding, counsel has a duty to
seek relief actively, such as by filing an appeal on behalf of the child. See In
re Adoption of J.L., 769 A.2d 1182, 1185 (Pa. Super. 2001).
However, the aforementioned best practices are not required by either
L.B.M. or T.S. at this point.3 Children are entitled to legal counsel, and they
indeed had that here. Counsel, whether they represent children or adults, are
bound to follow the Pennsylvania Rules of Professional Conduct. As in all other
areas of law, we presume counsel to be effective, so unless it is apparent from
the record before us that there may be a question as to whether a child was
deprived of the child’s statutory right to legal-interest counsel, this Court
should not remand for clarification of counsel’s role of children’s preference.
3 We recognize that section 6311 of the Juvenile Act does indeed mandate
some of these best practices for dependency proceedings. See 42 Pa.C.S.
§ 6311(b)(9). However, TPR hearings are governed by the Adoption Act,
which at this time imposes no similar requirements. See 23 Pa.C.S. § 2313.
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