Adoption of: T.M.L.M., A Minor, Appeal of: S.L.M.

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2018 PA Super 87IN RE: ADOPTION OF:
T.M.L.M., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.L.M., NATURAL MOTHER : No. 1480 WDA 2017
Appeal from the Order Dated September 5, 2017
in the Court of Common Pleas of Cambria County
Orphans’ Court at No(s): No. 2016-963 IVT
BEFORE: BENDER, P.J.E., SHOGAN, and STRASSBURGER, JJ.*
OPINION BY STRASSBURGER, J.: FILED APRIL 13, 2018
S.L.M. (Mother) appeals from the order dated September 5, 2017,
which terminated involuntarily her parental rights to her minor son, T.M.L.M.
(Child), born in June 2011. After review, we vacate the order and remand
for proceedings consistent with this opinion.
We derive the following background from the findings of fact made by
the orphans’ court, all of which are supported by the record. In late
January 2014, Mother attempted suicide and was admitted to a psychiatric
unit for three days. Cambria County Children and Youth Service (CYS)
became involved with Mother shortly thereafter, due to concerns about
Mother’s mental health, drug and alcohol abuse, lack of supervision of Child
and his two siblings, and involvement in domestic violence. The concerns
prompted CYS to file a dependency petition, and on June 3, 2014, the
juvenile court adjudicated Child dependent and transferred legal and
* Retired Senior Judge assigned to the Superior Court.
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physical custody to Child’s maternal great-aunt under the supervision of
CYS. Orphans’ Court Order, 9/5/2017, at 1.
Throughout the almost three years Child was in kinship foster care,
Mother’s life resembled, in the words of the orphans’ court, “a roller coaster
ride.” Id. at 3. The juvenile court in Child’s dependency matter initially
assessed Mother’s compliance with her permanency plan goals as minimal to
moderate, but from the December 2015 permanency review hearing onward,
Mother was not compliant at all. Id. at 3-5. The juvenile court changed
Child’s permanency goal to adoption at the October 2016 permanency
review hearing. Id. at 5.
Mother failed to complete successfully drug and alcohol treatment and
mental health treatment. Id. at 4-5. She did not maintain stable housing.
Id. Upon discharging Mother from family services, the family services
provider assessed her prognosis as “poor,” due to her continued denial of
responsibility for the family dynamics and lack of cooperation with services.
Id. at 5-6. The same service provider, on the other hand, described Child as
“flourishing” within his kinship foster home. Id. at 6.
Mother had long gaps without contact with Child or CYS. Id. at 4-5.
During one of those gaps, Mother was charged in connection with a large
drug bust. Id. at 5. On April 18, 2017, Mother pled guilty to a variety of
offenses involving the intent to deliver a controlled substance, conspiracy,
and other related charges, and was sentenced to 36 months to 72 months of
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imprisonment at State Correctional Institute (SCI) Muncy. At the time of the
termination hearings, Mother remained incarcerated. Id. at 6.
On October 25, 2016, CYS filed a petition seeking to terminate
involuntarily Mother’s parental rights.1 The orphans’ court conducted
hearingS on the petition on January 24, 2017, May 5, 2017, and May 18,
2017. At the hearings, Suzann Lehmier, Esquire represented Child. On
September 5, 2017, the orphans’ court entered an order terminating
Mother’s parental rights pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8)
and 2511(b) of the Adoption Act. This timely-filed appeal followed. Both
Mother and the orphans’ court complied with Pa.R.A.P. 1925.
Before we reach the issues presented by Mother on appeal, we address
sua sponte whether Attorney Lehmier’s representation of Child satisfies the
requirements of 23 Pa.C.S. § 2313(a).
Child has a clear statutory right to counsel in contested involuntary
termination proceedings:
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.
1 CYS’s petition also sought to terminate involuntarily the parental rights of
Child’s father. That termination was granted on September 5, 2017. Child’s
father did not contest the petition, participate in Mother’s appeal, or file his
own appeal.
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23 Pa.C.S. § 2313(a).
Appointment of counsel representing the child is mandatory, and
failure to do so is legal error. In re Adoption of G.K.T., 75 A.3d 521, 526
(Pa. Super. 2013) (citing In re E.F.H., 751 A.2d 1186, 1189-90 (Pa. Super.
2000)). See also In re Adoption of N.A.G., 471 A.2d 871 (Pa. Super.
1984) (holding 23 Pa.C.S. § 2313(a) creates a statutory right for a child to
have counsel appointed who actively advances his or her needs and welfare
and owes loyalty exclusively to him or her). 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 K.J.H., __ A.3d __, 2018 PA Super 37 (Pa. Super. Feb. 20,
2018).
Between the January 24, 2017 hearing and the May 2017 hearings in
this case, our Supreme Court decided In Re Adoption of L.B.M., 161 A.3d
172 (Pa. 2017). In Section I of L.B.M., a section joined by five justices, the
Court held that orphans’ courts must appoint counsel to represent the legal
interests of any child involved in a contested involuntary termination
proceeding pursuant to 23 Pa.C.S. § 2313(a). 161 A.3d at 180. In Section
II-A, a section joined by five justices, Justice Wecht explained that 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. Id. at 174.
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Importantly, the Justices disagreed on whether the role of counsel
may be filled by a guardian ad litem (GAL) who also represents child’s best
interests. In the Court’s lead opinion, Justice Wecht, joined by Justices
Donohue and Dougherty, opined that a child’s legal interests cannot be
represented by a GAL. Id. at 180–82. However, the Court’s remaining four
Justices disagreed with that portion of the lead opinion, and opined in a
series of concurring and dissenting opinions that a child’s dependency GAL
may serve as his or her counsel, so long as the GAL’s dual role does not
create a conflict of interest. Id. at 183–93. See also In re D.L.B., 166
A.3d 322, 329 (Pa. Super. 2017) (interpreting L.B.M. and declining to
remand for appointment of additional counsel for child who was represented
by an attorney who advocated for child’s non-conflicting best and legal
interests).
At the start of the May 5, 2017 hearing, the orphans’ court noted for
the record its belief that its appointment of Attorney Lehmier satisfied the
requirements of L.B.M.2 N.T., 5/5/2017, at 3 (“And the procedure that I
[have] follow[ed] the entire time I have been on the bench during these
cases is to appoint counsel, not just a [GAL]. So we have been in
conformity with [L.B.M.].”). Prior to the statement of the orphans’ court,
2According to the dependency orders entered into the record in the orphans’
court matter, see CYF Trial Exhibit 4, Child was represented by a GAL in his
dependency matter, but it is not clear from the record whether the GAL was
Attorney Lehmier or someone else.
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Attorney Lehmier had appeared on Child’s behalf during the January 24,
2017 hearing, but there is no indication of what role she served during that
hearing. No order of appointment appears in the certified record, despite a
notation on the docket dated December 9, 2016, indicating that the Court
had appointed Attorney Lehmier as GAL on October 26, 2016.
Our review of the record reveals the following regarding Attorney
Lehmier’s role. During the hearings, she cross-examined certain witnesses
but did not introduce any witnesses or evidence. At the conclusion of the
hearing, after the orphans’ court granted Attorney Lehmier’s request to
make a statement, Attorney Lehmier stated:
I did not have occasion to meet with [T.M.L.M.] or
talk with him directly. [Child’s foster mother] did indicate to
me[3] that [T.M.L.M.] is in school…[,] that he seems to be doing
pretty well, that he’s a very athletic child, that he’s currently I
believe playing soccer, and he’s also doing karate – he’ll be
doing karate this summer.
She indicated to me that there were some rocky times
over the past year or so with respect to his behavior and some
issues with him acting out in school. She also indicated that it’s
been pretty much resolved at this point and that she’s been
keeping him up to date on his different appointments with his
counselors and things of that nature and that things have pretty
much stabilized, so he seems to be doing pretty well right now.
While I can recognize [Mother’s] attempts over the last few
months to try to get things in order with her own life, from what
I’ve gleaned from this matter it was quite a transition for
3 Because [T.M.L.M.’s] foster mother did not testify, Mother’s counsel
objected to Attorney Lehmier’s recounting of her conversations with foster
mother, but the orphans’ court overruled Mother’s objection. N.T.,
5/18/2017, at 74. Mother does not challenge this ruling on appeal.
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[T.M.L.M.] adjusting to living with [his foster mother] and kind of
getting a calming influence in his life.
My concern with the court not granting the petition is that
there would be additional trauma and turmoil in [T.M.L.M.’s] life
with another adjustment coming down the road, and it seems to
me that the earliest that this adjustment would happen would be
in another 15 months, which would give him more time to kind
of settle in to where he is right now and then possibly have that
uprooted.
So that is my only concern, his best interests, and I’m
sure the court will look out for that in deciding this matter.
Thank you.
Id. at 74-75 (emphasis added).
Notably, we are unable to locate any place in the record, in this
statement or otherwise, where Attorney Lehmier set forth Child’s preferred
outcome.4 Nor did Attorney Lehmier indicate that she was unable to
ascertain Child’s preferred outcome due to Child’s age, development, or
other reason. In fact, she freely admitted that she did not even attempt to
4 Child’s position at the time of the hearings is not readily discernible from
other sources in the record. The only indications of what Child’s position
might be are the following: (1) Child periodically requests to call Mother,
N.T. 5/5/2017, at 33, 37; (2) Child periodically asks about Mother, id. at 35-
36; (3) according to the September 28, 2015 permanency review order,
Child cries at visits and says he wants to go home to Mother, CYF Trial Ex. 4;
(4) according to the December 22, 2015 permanency review order, Child
wants to live with his foster mother and visit Mother, id.; (5) according to
the June 20, 2016 permanency review order, Child wants to live with his
foster mother, id.; and (6) according to the November 7, 2016 permanency
review order, Child “understands he cannot live with [Mother.]” Id.
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interview Child.5 Furthermore, she directly admitted that her “only concern”
was his best interests.
Compounding matters is Attorney Lehmier’s failure to file a brief in this
Court or join the brief of another party. She also failed to indicate to this
Court that she would not be filing a brief and did not attend oral argument
despite acknowledging the scheduled date. Counsel’s duty to represent a
child does not stop at the conclusion of the termination of parental rights
hearing. See In re Adoption of J.L., 769 A.2d 1182, 1185 (Pa. Super.
2001); 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).
We recognize that attorneys may encounter unique challenges when
representing children that are different from the challenges they may
encounter when representing adults, particularly when the representation
concerns such sensitive subject matter. Nevertheless, counsel representing
children must “represent [their clients] with zeal and professionalism.
[Children have] no say in [appointment of counsel] and deserve to have the
benefit of effective representation, particularly when a matter as important
as [their] future relationship with a biological parent is at stake.” In re
5 She also does not indicate that another attorney in her firm or social
worker or paralegal working on her behalf interviewed or attempted to
interview Child.
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J.J.F., 729 A.2d 79, 83 (Pa. Super. 1999) (Schiller, J., concurring). Not only
do children not have a say in the appointment of counsel, due to their
minority, most children are not in a position to assess whether counsel has
represented their interests effectively.
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 Attorney
Lehmier’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 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.
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Based upon our review of the record, we have no basis to conclude
that Attorney Lehmier effectively represented Child’s legal interests in this
matter. Therefore, we hold that Child was deprived of his statutory right to
counsel. We recognize that Child has been in foster care for almost four
years at this point, and would benefit from achieving permanency. While we
do not wish to prolong the uncertainty of Child’s future, we are constrained
to vacate the order terminating Mother’s parental rights and remand for
proceedings consistent with this opinion. Upon remand, the court shall
appoint separate counsel for Child to represent his legal interests.6 After
review of the prior proceedings and appropriate consultation with Child,
Child’s legal-interests counsel shall notify the orphans’ court whether the
result of the prior proceedings is consistent with Child’s legal interests or
whether counsel believes a new hearing is necessary to provide counsel an
opportunity to advocate on Child’s behalf. The orphans’ court shall conduct
a new hearing only if it serves the “substantive purpose” of providing Child
with an opportunity to advance his legal interests through his new counsel.7
See N.A.G., 471 A.2d at 875.
6 Given Attorney Lehmier’s failure to represent Child in any fashion on
appeal, the orphans’ court may, in its discretion, also appoint counsel to
represent Child’s best interests on remand.
7 In N.A.G., the children were unrepresented until after the hearings, when
the orphans’ court realized its mistake and belatedly appointed counsel for
the children. Father appealed from the order terminating his rights, arguing,
inter alia, that this Court should vacate the decree and remand for a new
(Footnote Continued Next Page)
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Order vacated. Case remanded for proceedings consistent with this
opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2018
(Footnote Continued) _______________________
hearing wherein the children would have representation. This Court made
clear that the failure to appoint counsel prior to the hearings was “contrary
to the statute’s procedural mandate.” Id. at 874. However, because the
children’s belatedly appointed counsel confirmed that the children did not
wish to alter the termination decree and did not request a new hearing so
that counsel could actively participate on their behalf, this Court held that
the failure to appoint counsel prior to the hearing was harmless error. Id. at
874-75. The Court reasoned that the purpose of subsection 2313(a) is to
guarantee the child an advocate who owes his or her loyalty exclusively to
the child, as opposed to benefitting or creating rights in a contesting parent.
Id. at 874. Thus, the Court declined to remand for a new hearing where a
hearing would not serve a “substantive purpose.” Id. at 875.
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