In the Int. of: Y.A.C., a Minor

J-S08034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: Y.A.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.L.B. :
:
:
:
:
: No. 1255 MDA 2021
Appeal from the Decree Entered August 31, 2021
In the Court of Common Pleas of York County Orphans' Court at No(s):
2021-0144
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 29, 2022
M.L.B. (Father) appeals from the decree entered in the York County
Orphans’ Court, which involuntarily terminated his parental rights to Y.A.C.
(Child), born in July 2015. Father complains the court committed reversible
error when it terminated his rights because Child’s needs and welfare could
have been met by giving custody to a paternal aunt, thereby preserving his
relationship with Child. For the reasons below, we are constrained to vacate
the termination decree and remand for proceedings consistent with this
memorandum.
J-S08034-22
The underlying facts that led to the termination of Father’s parental
rights are as follows.1 Child is the son of Father and T.N.C. (Mother),2 who
are not married. See Motion for Judicial Notice, 8/27/21, at 1. In January
2020, Child came into the custody of CYF on an emergency basis. See id. at
2. The order was based on evidence which demonstrated that continuation or
return of Child to the home of Mother and Father was not in the best interest
of Child. See id. Child was then placed in foster care, where he remains with
a half-sibling. See id.; N.T., 8/31/21, at 60.
At a hearing on January 28, 2020, the court adjudicated Child dependent
and awarded legal and physical custody of Child to CYF. See Motion for
Judicial Notice at 2. Father did not attend this hearing and he did not file an
appeal. See id. at 3. His whereabouts were unknown to CYF until May 2020
when he was discovered to be in the York County prison, where he was being
held for charges of criminal homicide and possession with intent to deliver.
See N.T. at 55, 57.
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1 We note the facts are gleaned from the August 31, 2021, termination hearing
and York County Office of Children, Youth and Families (CYF)’s motion for
judicial notice. The orphans’ court entered an order on August 31, 2021,
granting CYF’s motion and stating that it would be taking judicial notice of all
averments in the motion. See Order of Court, 8/31/21.
2The court also entered an order that involuntarily terminated Mother’s rights
on August 31st. Mother did not appeal the court’s decree.
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The court held numerous permanency review hearings between July
2020 and May 2021. See Motion for Judicial Notice at 3-10. Due to Father’s
incarceration, he did not make any progress toward alleviating the
circumstances that resulted in Child being dependent. See id. at 9. His
requests for visits and for telephone visits with Child were denied by the York
County Prison. See N.T. at 50, 65-66. CYS also provided Father with a Family
Service Plan relating to Child which he did not object to until January 2021,
wherein he raised concerns about certain family findings and requested
visitation for the first time. Id. at 55-56. Nevertheless, Child knows Father
and recalls living with him. Id. at 58. Father provided no monetary support
or gifts to Child but did send some clothing items. Id. He also never
requested any photographs of Child. Id.
At some point during the dependency proceedings, Father submitted a
request, through the Interstate Compact for the Placement of Children (ICPC),
to assess his sister as a possible resource for Child. See N.T. at 52. The
sister was located in North Carolina. See id. The sister traveled to
Pennsylvania and met with Child two times for three hours per visit. See id.
at 53. The CYF caseworker stated the visits went “well” with the second visit
being “a little bit more natural and easy going.” Id. at 52-53
On June 18, 2021, CYF filed a petition for involuntary termination of
both Mother’s and Father’s parental rights pursuant to 23 Pa.C.S. §
2511(a)(1), (2), (5), and (8).
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The court held a termination hearing on August 31, 2021. Child, then
age six, was represented during the proceeding by T.L. Kearney, Esquire,
whom the court appointed to represent Child as legal counsel. See Order of
Court, 6/30/21.
At the hearing, CYS indicated it was not going move Child upon approval
of the ICPC because it “would like to see th[e] relationship [with Father’s
sister] explored more before [it] would consider placement in her care.” N.T.
at 54. Moreover, CYS stated while it did receive verbal approval, it never
received an official transmittal with Pennsylvania state approval regarding
Father’s sister because her local ICPC office did not send the transmittal
through the proper channels. Id. at 70, 73. Father requested the court delay
its decision pending the formal outcome of the ICPC process. Id. at 101-02.
The court denied his request but noted his position – that he desired his sister
to have custody. Id. at 102.
That same day, the court then terminated Father’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(2), (5), and (8). See N.T. at 110-20. The
court also found termination will best serve Child’s developmental, physical,
and emotional needs and welfare, pursuant to 23 Pa.C.S. § 2511(b). See id.
Father filed a timely pro se appeal. Because Father was represented by
court-appointed counsel (Scott A. Beaverson, Esq.), this Court entered
counsel on the appellate docket and, inter alia, directed him to file a concise
statement pursuant to Pa.R.A.P. 1925(b) with the orphans’ court. In
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response, counsel filed a December 15, 2021, “Application to Address Pro Se
Status of Appellant,” in which he asserted that he was appointed as counsel
for Father solely for the related dependency matter and not for the instant
termination of parental rights matter. The orphans’ court confirmed that
counsel was not court-appointed to represent Father in the present matter.
On December 20, 2021, this Court entered an order directing the orphans’
court to appoint counsel, stating that at its discretion, the court may appoint
Attorney Beaverson to represent Father. One day later, the orphans’ court
appointed Attorney Beaverson, and directed that counsel filed a Rule 1925(b)
concise statement. Counsel complied with the order on January 3, 2022. The
orphans’ court issued a Pa.R.A.P. 1925(a) opinion on January 11, 2022.
On appeal, Father raises the following issue:
Did the [orphans’] court commit reversible error in involuntarily
terminating the parental rights of [Father] when [Child]’s needs
and welfare could have been met by giving custody to a paternal
aunt and preserving the parent/child relationship?
Appellant’s Brief at 5.
In his sole issue, Father contends the court erred by terminating his
rights under 23 Pa.C.S. § 2511(b) because a family member, his sister, was
purportedly available to care for Child. Father concisely states:
In the case at bar, while Father’s incarceration and pending
charges caused him to be unavailable as a resource for [ ] Child,
he offered his sister in North Carolina as a resource for [ ] Child.
A formal investigation under the ICPC was undertaken and
informal approval was had, awaiting only final paperwork for
approval. The [a]unt from North Carolina traveled to
Pennsylvania for two visits with [ ] Child, and at least the second
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of those went well. Giving custody to the [a]unt in North Carolina
until Father could become available to parent once again could
have preserved the unity of this family.
Appellant’s Brief at 9.
We note the standard of review of an order terminating parental rights:
[O]ur scope of review is comprehensive: we consider all the
evidence presented as well as the trial court’s factual findings and
legal conclusions. However, our standard of review is narrow: we
will reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Before we may address the merits of Father’s claim, we must first
determine sua sponte the representation of Child’s guardian ad litem
(GAL)/Legal Counsel, Attorney Kearney. See In re Adoption of K.M.G., 240
A.3d 1218 (Pa. 2020).
Section 2313(a) of the Adoption Code states:
(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).
“[W]here the orphans’ court has appointed a single attorney to
serve as [GAL] and legal counsel to represent both the child’s best
interests and legal interests, [our Supreme Court] concluded an
appellate court should review sua sponte whether the court
made a determination that those interests did not conflict.”
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In re P.G.F, ––– Pa. –––, 247 A.3d 955, 964–65 (2021). The
Court “cautioned that ‘appellate review of this question does not
involve second–guessing whether GAL/Counsel in fact had a
conflict but solely whether the orphans’ court made the
determination in the first instance.’” Id. at 965 (quoting K.M.G.,
supra at 1235-1236) (cleaned up)).
Interest of A.J.R.O., __ A.3d __, __, 2022 WL 364005, at *6 (Pa. Super.
Feb. 8, 2022) (emphasis added).
In In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017), the
Pennsylvania Supreme Court provided the definitions of best and legal
interests as set forth in the comment to Pa.R.J.C.P. 1154, which read:
“Legal interests” denotes that an attorney is to express the child’s
wishes to the court regardless of whether the attorney agrees with
the child's recommendation. “Best interests” denotes that a [GAL]
is to express what the [GAL] believes is best for the child’s care,
protection, safety, and wholesome physical and mental
development regardless of whether the child agrees.
L.B.M., 161 A.3d at 174 n.2 (citation omitted).
Turning to the present matter, a review of the record reveals the
following. Attorney Kearney was appointed as Child’s GAL in the underlying
dependency proceeding. See N.T. at 167-68. In the June 30th order, the
court appointed Attorney Kearney as legal counsel for the termination
proceeding. Then, at the August 31st proceeding, counsel was referred to as
Child’s GAL as well as representing Child’s legal interests. Id. at 7, 80.
Moreover, during argument, Attorney Kearney first stated that he believed “it
[was] in the best interest of [Child] to have [the termination] petition . . .
granted.” Id. at 106. Attorney Kearney then stated that as Child’s “legal
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counsel,” he had the opportunity to speak with Child in his current home
environment as well as observe Child interacting with his foster parents and
sibling. Id. Attorney Kearney also noted that Child, who was six years old at
the time of the hearing, did not have a full understanding of the legal process
but had expressed to counsel his preferred outcome. Id. at 106-07.3
Based on our review of the record, there is no indication that either prior
to the hearing or at the hearing, “the orphans’ court made the requisite
determination” that then-six-year-old Child’s “legal and best interests did not
conflict.” A.J.R.O., __ A.3d at __, 2022 WL 364005, at *6. As such,
[s]ince we cannot determine from the certified record whether the
orphans’ court fulfilled its [Section] 2313(a) duty to ‘determine
whether counsel can represent the dual interests before
appointing an individual to serve as GAL/Counsel for a child[,]’ we
cannot fulfill our duty to sua sponte ‘verify that the orphans’ court
indicated that the attorney could represent the child’s best
interests and legal interests without conflict.’
Id., quoting K.M.G. 240 A.3d at 1236.4
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3Attorney Kearney is also identified as Child’s GAL/Legal Counsel on the cover
page of the Appellee’s Brief. Counsel co-signed the Appellee’s brief.
4 We note this matter is distinguishable from a situation where Section 2313
is satisfied by a GAL representation of a child, in which “the preferred outcome
of a child is incapable of ascertainment because the child is very young and
pre-verbal,” and therefore, “there can be no conflict between the child’s legal
interests and his or her best interests.” In re T.S., 192 A.3d 1080, 1092 (Pa.
2018). Here, as noted above, Child is six years old, verbal, and expressed his
preferred outcome.
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Therefore, in accordance with A.J.R.O., we are compelled to vacate the
termination decree and remand for further proceedings. On remand, we direct
the orphans’ court to fulfill its obligation pursuant to Subsection 2313(a) and
determine whether Attorney Kearney may represent the dual interests of
Child. If the court determines that no conflict exists, the court shall re-enter
its August 31, 2021, termination decree as to Father. If the court determines
there is a conflict between Child’s legal and best interests, the court shall
appoint separate legal counsel and conduct a new termination hearing as to
Father to provide legal counsel an opportunity to advocate on behalf of Child’s
legal interests. See A.J.R.O., __ A.3d at __, 2022 WL 364005, at *6.
Decree vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2022
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