In the Int of: D.G., Appeal of: A.G. ( 2020 )

J-S07001-20 & J-S07002-20
2020 PA Super 269: IN THE SUPERIOR COURT OF
IN THE INTEREST OF: D.G., A MINOR : PENNSYLVANIA
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APPEAL OF: A.G., MOTHER :
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: No. 2267 EDA 2019
Appeal from the Order Entered July 16, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0002404-2016
IN THE INTEREST OF: D.P.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.G., MOTHER :
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: No. 2268 EDA 2019
Appeal from the Order Entered July 16, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000206-2018
IN THE INTEREST OF: D.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.G., CHILD :
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: No. 2294 EDA 2019
Appeal from the Order Entered July 16, 2019
J-S07001-20 & J-S07002-20
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-00002404-2016
IN THE INTEREST OF: D.P.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: D.P.G., CHILD :
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: No. 2295 EDA 2019
Appeal from the Order Entered July 16, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000206-2018
BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.*
OPINION BY NICHOLS, J.: Filed: November 19, 2020
A.G. (Mother) appeals from the respective decree and order1 granting
the petitions filed by the Philadelphia Department of Health and Human
Services (DHS) to terminate involuntarily her parental rights to D.G., also
known as D.P.G. (Child), born July 2003, and changing the permanency goal
from reunification to adoption. Child’s guardian ad litem (GAL) also appeals
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The trial court also terminated the parental rights of J.B. (Father). Father
did not appeal. As discussed below in further detail, the trial court previously
terminated Mother’s parental rights to Child’s sibling, D.N.G. (Sibling 1), but
this Court vacated that decree in a published opinion in Interest of D.N.G.,
230 A.3d 361 (Pa. Super. 2020).
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from the same decree and order.2 For the reasons that follow, we conclude
that Child was not afforded the full benefit of legal counsel, and we vacate the
decree and order and remand these matters for further proceedings consistent
with this opinion.
The trial court summarized the background to these appeals as follows:
DHS originally became involved with this family on November 5,
2014. DHS received a General Protective Services (GPS) report
alleging that Mother had not been providing food to Child and
Sibling 1;[fn2] Mother had not been ensuring that Child was
attending school; Child had been playing in the streets without
appropriate supervision; Mother was pregnant; Mother had stated
that the family home at the time was not her property; Mother
was unemployed. This report was determined to be valid. On
December 24, 2014, In-Home Services (HIS) were implemented
through the Community Umbrella Agency (CUA) Bethanna to
assist Mother with Child’s physical, educational, medical, and
mental health needs. On January 12, 2015, CUA held a Single
Case Plan (SCP) meeting and Child’s goal was identified as
“stabilize family.” Mother’s objectives were to provide a safe and
appropriate environment for Child; contact the Office of
Supportive Housing (OSH) to assist with permanent housing;
meet Child’s educational needs; ensure that Child attends school
on a daily basis; cooperate with CUA services; and be available
for all home visits and requested information.
[fn2]Child has two siblings that are not involved in this
appeal. This trial court terminated Mother’s parental rights
to Sibling 1 on January 17, 2019. Mother subsequently
appealed Sibling 1’s termination and goal change on
February 11, 2019. [At the time the trial court prepared its
opinion in this matter, the appeal regarding Sibling 1 was
pending decision by the Superior Court of Pennsylvania.
This Court issued the opinion in D.N.G. on March 13, 2020].
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2 We consolidate Mother’s and the GAL’s appeals for the purpose of this
decision.
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On August 30, 2016, CUA conducted a visit with Mother and the
Transitional Case Manager (TCM) from Friends Rehabilitation
Program. CUA, TCM, and Mother discussed Mother’s lack of
compliance with the Transitional Housing Program. TCM and
Mother scheduled an appointment at the TCM’s office and CUA
provided Mother with public transit tokens in order to attend the
appointment and transport Child to school. On September 7,
2016, Mother failed to appear for the scheduled meeting with the
TCM. The TCM visited the family home and found that Child was
not in school for his first day; Child was dirty and wearing minimal
clothing, and Mother was lying in bed. Mother told the TCM that
Child needed a haircut and was not presentable to go to his first
day of school. Mother also stated that she was unable to attend
the scheduled meeting because did not have public transit tokens.
On September 20, 2016, CUA arrived at the home for a scheduled
visit in the early evening and found Child playing in the vacant lot
across the street from the family home. CUA found that the house
was dirty, Child was running around the home and yelling, and
Mother was unwilling to leave her bed. Mother stated that she
was tired and was not adjusted to awakening early in the
mornings. Mother was minimally engaging with CUA and
continuously fell asleep throughout the discussion. On September
22, 2016, CUA visited the family home again. Mother stated that
she did not have a plan if the family were to be evicted from
transitional housing and that she did not have any resources to
care for Child and siblings.
Child [was] truant [while in Mother’s care]. During the 2014-2015
school year, Child had 21 unexcused absences and 36 late arrivals
to school. During the 2015-2016 school year, Child had 64
unexcused absences and 18 late arrivals to school. During the
2016-2017 school year, Child had 4 unexcused absences and 4
late arrivals to school.
On November 10, 2016, an adjudicatory hearing was held for
Child, Sibling 1, and Sibling 2. Child was adjudicated dependent
based on truancy and present inability to provide appropriate care
and supervision. Mother was ordered to comply with mental
health treatment recommendations. Mother was also ordered to
ensure Child attends school on a daily basis with no unexcused
absences or latenesses as well as to sign all necessary releases.
Mother and Child were referred to the Behavioral Health System
(BHS) for monitoring. The trial court ordered that DHS
supervision be implemented for family.
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On November 30, 2016, a permanency review hearing was held
for Child. Mother was present for this hearing. The trial court
determined that Mother was non-compliant with her court-ordered
objectives. The trial court ordered that DHS supervision stand,
that DHS was to obtain an Order of Protective Custody (OPC) for
Child, that the police department assist, and that DHS and/or CUA
plan for the placement of Child. On that same day, DHS obtained
an OPC for Child and siblings in order to ensure their safety. Child
was placed in foster care through Bethanna. At the shelter care
hearing on December 2, 2016, the trial court lifted the OPC,
discharged the temporary commitment to DHS, and fully
committed Child to the custody of DHS. Mother was referred to
BHS for consultation and/or evaluation; referred to the Clinical
Evaluation Unit (CEU) for a forthwith drug and alcohol screen, dual
diagnosis assessment, and three random screens; and ordered to
not have any contact with Child outside of supervised visitation.
The trial court further ordered that if Mother failed to comply, she
would be held in contempt.
* * *
. . . DHS filed petitions to involuntarily terminate Mother’s parental
rights and change Child’s permanency goal to adoption on March
16, 2018.
* * *
On January 17, 2019, a permanency review hearing was held for
Child. Mother was present for this hearing. The trial court learned
that Mother was engaged at JFK for services. The trial court
ordered the commitment of Child to stand. The trial court held
the termination and goal change petitions in abeyance as to
Mother because Michael Graves, Esq., as Child’s special legal
counsel (Legal Counsel), needed to visit with Child. Legal Counsel
was ordered to visit Child prior to the next permanency review
hearing. On the same date, the trial court held a termination and
goal change trial for Sibling 1. The trial court later incorporated
the testimony given at that hearing into Child’s termination and
goal change trial.
On July 16, 2019, the trial court . . . held the termination and
goal change trial for Child.
Trial Ct. Op., 1-3, 5-6 (some footnotes omitted and formatting altered).
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On July 16, 2019, the trial court entered the decree terminating Mother’s
parental rights and the order changing the permanency goal from reunification
to adoption. On August 12, 2019, Mother and the GAL each filed separate
notices of appeal and statements of errors complained of on appeal in the
adoption and dependency cases. The trial court filed a responsive opinion
addressing the adoption and dependency appeals.
Mother presents the five questions, which we have reordered as follows:
1. Did the trial court violate [fifteen] year old [Child’s] statutory
right to legal counsel during the contested involuntary
termination/goal change hearing?
2. Did [Child] receive effective legal representation in the
involuntary termination/goal change hearing pursuant to [the
Pennsylvania] Rules of Professional Conduct?
3. Did the trial court abuse its discretion, when it involuntarily
terminated [M]other’s parental rights pursuant to 23 Pa.C.S.[
§] 2511 (a)(1), (2), (5), and § 2511 (a) (8)?
4. Did the trial court abuse its discretion, when it determined that
terminating [M]other’s parental rights would best serve the
needs and welfare of [Child] pursuant to 23 Pa.C.S.[] §
2511(b)?
5. Did the trial court abuse its discretion when it changed [Child’s]
goal to adoption?
Mother’s Am. Brief, 2267 EDA 2019 & 2268 EDA 2019, at vii.3
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3 The Pennsylvania Supreme Court suspended Mother’s counsel at trial (trial
counsel) from the practice of law effective at the time he filed the initial
appellant’s briefs in these appeals. This Court struck the briefs filed by
Mother’s trial counsel and remanded for the appointment of new counsel.
Mother’s issues were preserved in trial counsel’s Rule 1925(b) statements.
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The GAL presents two issues for review, which we have reordered as
follows:
1. The trial court committed an error of law and/or abuse of
discretion by involuntarily terminating Mother’s parental rights
and changing [Child’s] permanency goal from reunification to
adoption, when [Child] has recently moved to his current
placement, indicating that any adoption by the current
caregiver was uncertain.
2. Did the trial court commit[] an error of law and/or abuse of
discretion when it denied [GAL’s] request for a continuance or
to hold the decision in abeyance so that the GAL could have
the opportunity to speak when [Child] had moved to a new
foster home[?]
GAL’s Brief, 2294 EDA 2019 & 2295 EDA 2019, at 7.
Child’s Right to Counsel
Mother’s first two issues and the GAL’s first issue focus on Child’s right
to counsel. Mother claims that “the trial court violated [Child’s] statutory legal
right to counsel.” Mother’s Am. Brief at 11. Mother references 23 Pa.C.S. §
2313(a) and our Supreme Court’s decision in In re Adoption of L.B.M., 161
A.3d 172 (Pa. 2017). She asserts that the trial court failed to assess whether
there was a conflict between Child’s best and legal interests. Id. at 10.
Mother emphasizes that the trial court excused Legal Counsel from the July
16, 2019 hearing after an exchange in the middle of that hearing. See id.
Mother further asserts that “the trial court inadvertently minimized the
importance of [Child’s] right to legal counsel given the trial court’s belief that
it [was] the court’s role to ultimately decide what [was] in [Child’s] best
interest.” Id. at 11. Mother continues:
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Unfortunately, this position overlooks the fact that under the
Adoption Act, a child over the age of 12 must consent to the
adoption. 23 Pa.C.S.[ §] 2711(a). Thus, without giving equal
weight to an adolescent’s preferences versus the court’s
perception of what is in his best interest, the court runs the risk
of creating an orphan unnecessarily.
Id.
Mother also claims that Legal Counsel’s representation of Child was
deficient. Id. at 11-13. Mother notes that while Legal Counsel consulted with
Child when Child was in a residential facility, Legal Counsel did not determine
whether Child’s preferences regarding adoption changed when Child moved to
live with Sibling 1 in a foster home. Id. at 13. Mother again emphasizes that
“after placing what he thought to be [Child’s] position on the record,” Legal
Counsel “left the courtroom.” Id.
The GAL claims, in part, that Child was “denied the zealous
representation by [Legal Counsel].” GAL’s Brief at 12. The GAL notes that
Legal Counsel did not call witnesses, produce evidence, or request that Child
be present or questioned in camera by the trial court. Id.
DHS counters that the Child’s right to legal counsel was satisfied. DHS
contends that once appointed, a child’s legal counsel’s duty is “to place their
client’s position on the record” and that “[t]hat is precisely what occurred
here.” DHS’s Brief, 2267 EDA 2019 & 2268 EDA 2019, at 46;4 see also DHS’s
Brief, 2294 EDA 2019 & 2295 EDA 2019, at 22 (arguing that “the record is
____________________________________________
4 DHS filed an initial appellee’s brief in response to Mother’s initial appellant’s
brief, which, as noted above, this Court struck. DHS did not file a response
to Mother’s amended brief and elected to rely on its initial appellee’s brief.
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clear that the trial court properly ensured that both Child’s legal and best
interests were protected”). DHS notes that because the trial court appointed
Legal Counsel to represent Child, “this was not a situation where Child’s best
and legal interests diverged, and the GAL impermissibly represented both
interests.” DHS’s Brief at 47. DHS continues that Legal Counsel met with
Child and expressed Child’s preference to be with Mother at the hearing. Id.
DHS concludes that “[t]he trial court was well aware of the how Child felt.”
Id.
DHS further claims that Mother’s mere assertions of ineffective
assistance of counsel do not warrant a new hearing. Id. at 44-45. DHS relies
on In re K.D., 871 A.2d 823 (Pa. Super. 2005), for the proposition that claims
of ineffectiveness in a termination proceeding will not be the basis for a
remand or a rehearing, unless the result would have been different. Id. at
44. According to DHS, Mother simply disagrees with Legal Counsel’s strategy
and cannot show how any shortcomings in Legal Counsel’s representation of
Child affected the “ultimate outcome of the case.” Id. Instead, DHS asserts
that “[n]o differing legal strategy would have changed the fact that [DHS]
clearly met its burden of proving the statutory grounds for [terminating
Mother’s parental rights] and that the goal change served Child’s best
interests.” Id.
Legal Counsel has not filed a brief in this appeal. However, in a letter
filed in Mother’s appeal, Legal Counsel stated that he joined DHS’s brief.
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Initially, this Court will consider the parties’ arguments regarding Child’s
right to counsel in the termination proceeding. Our Supreme Court has
established that appellate review of an order granting or denying termination
of parental rights requires the appellate court to “accept factual findings and
credibility determinations supported by the record” and “assess whether the
common pleas court abused its discretion or committed an error of law.” In
re T.S., 192 A.3d 1080, 1087 (Pa. 2018) (citation omitted), cert. denied sub
nom. T.H.-H. v. Allegheny Cty. Office of Children, Youth & Families, 139
S. Ct. 1187, 203 L. Ed. 2d 220 (2019). This Court’s standard and scope of
review of questions of law is de novo and plenary. See id.Section 2313(a) of the Adoption Act establishes a child’s right to legal
counsel in a termination proceeding as follows:
(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).
Our Supreme Court has explained:
[T]he first sentence of Section 2313(a) requires that the common
pleas court appoint an attorney to represent the child’s legal
interests, i.e., the child’s preferred outcome; (b) where there is a
conflict between the child’s legal interests and his best interests,
an attorney-[GAL], who advocates for the child’s best interests,
cannot simultaneously represent the child’s legal interests;[fn2]
and (c) in such a circumstance, the failure to appoint a separate
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attorney to represent the child’s legal interests constitutes
structural error, meaning it is not subject to a harmless-error
analysis.
The difference between legal interests and best interests
[fn2]
is summarized in a comment to a rule governing the GAL’s
duties in dependency matters:
“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
guardian ad litem is to express what the guardian ad
litem believes is best for the child’s care, protection,
safety, and wholesome physical and mental
development regardless of whether the child agrees.
T.S., 192 A.3d at 1082 & n.2 (citation and some footnotes omitted).
In D.N.G., this Court previously considered Mother’s appeal with respect
to Sibling 1, who Legal Counsel also represented along with Child. See
D.N.G., 230 A.3d at 363. The D.N.G. Court vacated the decree terminating
Mother’s parental rights to Sibling 1, holding that Sibling 1 “was deprived of
his statutory right to counsel to advance his legal interest . . . .” 5 Id. at 367.
Several points in D.N.G. bear emphasis. First, the D.N.G. Court noted
that Mother did not object to Legal Counsel’s representation of Sibling 1 in the
trial court. D.N.G., 230 A.3d at 366. Nevertheless, because Mother
challenged Legal Counsel’s representation of Sibling 1 on appeal, this Court
concluded that it could “address the merits of Mother’s argument [as to Sibling
1] even though she neglected to object” in the trial court. Id.
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5 The D.N.G. Court affirmed the order granting a goal change to adoption as
to Sibling 1 because Mother abandoned any argument in support of the
dependency order in that appeal. See D.N.G., 230 A.3d at 363 & n.2.
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Second, Mother and DHS raised similar arguments in the instant appeal
that they argued in D.N.G. See id. Specifically, in D.N.G., DHS argued that
Legal Counsel “performed his duty fully by discerning [Sibling 1’s] preference
and reported it to the court.” Id. (citation omitted). However, the D.N.G.
Court rejected as “shallow,” or “narrow,” DHS’s attempts to define to a child’s
legal counsel’s duties as only talking to a child and reporting the child’s
preference to the trial court:
While legal representation in this context necessarily involves
talking to the child client and reporting the child’s preferences to
the court, it is in no way limited to those two actions. To the
contrary, pursuant to the majority of justices in [L.B.M., Legal
Counsel] was required to advocate on behalf of [Sibling 1] and
provide zealous client-directed representation of [Sibling 1’s] legal
interests.
Id.
Third, the D.N.G. Court found several factors particularly relevant when
concluding that Legal Counsel’s representation of Sibling 1 was deficient. For
example, the Court noted that beyond advising the trial court of Sibling 1’s
preference, Legal Counsel failed to participate meaningfully in the hearing
“relative to” Sibling 1’s legal position. Id. at 365. Moreover, this Court
highlighted Legal Counsel’s failure to join or support Mother and Father’s
requests for permanent legal custody as an alternative to adoption,6 and Legal
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6 This Court has explained that “[i]f the [trial] court decides that neither
reunification nor adoption is best suited to the child’s safety, protection and
physical, mental and moral welfare, it may order the child to be placed with a
legal custodian.” In re B.S., 861 A.2d 974, 976 (Pa. Super. 2004) (citing 42
Pa.C.S. § 6351(f.1)(3)).
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Counsel’s decision to forgo opportunities to argue in support of Sibling 1’s
legal interest even when Mother and the GAL opposed the termination of
Mother’s parental rights. Id. at 366. The D.N.G. Court further reasoned:
Most importantly, [Legal Counsel] failed to cast the most
meaningful legal argument in his arsenal, i.e., the probability that
his soon-to-be-twelve-year-old client would refuse to consent to
any contemplated adoption.[fn3] Indeed, by terminating parental
rights notwithstanding [Sibling 1’s] express desire not to be
adopted, the family court risked transforming [Sibling 1] into an
orphan without any true purpose. That is an outcome the family
court no doubt would be loath to achieve. See In re Adoption
of L.J.B., [18 A.3d 1098, 1108 (Pa. 2011)] (“[T]he purpose of
involuntary termination of parental rights is to dispense with the
need for parental consent to an adoption when, by choice or
neglect, a parent has failed to meet the continuing needs of the
child.”).
Pursuant to [23 Pa.C.S.] § 2711(a)(1), “consent to an
[fn3]
adoption shall be required of ... [t]he adoptee, if over 12
years of age.”
Id. at 367. For these reasons, the D.N.G. Court concluded Legal Counsel’s
representation “did not satisfy the mandate of § 2313(a)” because “it was
[Legal Counsel’s] obligation to engage in client-directed advocacy on behalf of
[Sibling 1] with regard to the child’s preferred outcome.” Id. (citing L.B.M.,
161 A.3d at 180).
Fourth, and of particular relevance to this appeal, the D.N.G. Court did
not frame its conclusions in terms of the ineffective assistance of counsel. To
the contrary, as noted above, the Court held that Legal Counsel’s inactions
deprived of Sibling 1 of his statutory right to counsel, and the Court did not
analyze whether the deficiencies in Legal Counsel’s representation affected
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the outcome of the termination of parental rights proceeding. Compare id.,
with K.D., 871 A.2d at 829.
Here, the trial court appointed Legal Counsel to represent both Child
and Sibling 1. At the January 17, 2019 hearing, as was discussed in D.N.G.,
Legal Counsel failed to provide adequate representation of Sibling 1. At the
time of the January 17, 2019 hearing, however, Legal Counsel had not had an
opportunity to meet with Child, and the trial court continued its consideration
of DHS’s petitions for the involuntary termination of Mother’s parental rights
to Child and for a goal change until a second hearing. See N.T., 1/17/19, at
32.
Legal Counsel next appeared at the second hearing held on July 16,
2019. At the beginning of the hearing, an exchange occurred between the
trial court and Legal Counsel, during which the trial court confirmed that Child
was fifteen years old at the time, and that Child was competent to express his
wishes and knew the difference between adoption and reunification. N.T.,
7/16/19, at 9. Legal Counsel reported that he met Child at a residential facility
and that similar to Sibling 1, “[Child] stated . . . that he would like to live with
[Mother]. However, if that’s not possible, that he would be fine living with
[Sibling 1] with the current caretaker.” Id. at 9-10. Legal Counsel then asked
to be heard at a sidebar, which the trial court granted. See id. at 38. The
sidebar conversation was not transcribed. See id.
DHS thereafter called Dr. Erica Williams, the psychologist who
conducted a parental capacity examination of Mother and authored a report
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on March 19, 2019. Dr. William opined that Mother “did not present with
capacity to provide safety and permanency to her children.” Id. at 52. Legal
Counsel declined to cross-examine Dr. Williams. Id. at 75.
During re-cross examination of Dr. Williams by Mother’s trial counsel,
the trial court interrupted and engaged in a discussion with Legal Counsel on
the record. Id. at 92. Based on an apparent agreement reached at the
previous sidebar conference, Legal Counsel repeated Child’s preference that
Child “would like to live with” Mother, but was “fine with living with” Sibling 1
and Sibling 1’s caretaker if that was not possible. Id. at 93. Upon further
questioning by the trial court, Legal Counsel asserted that Child “did not state
that he did not want to be adopted . . . . He just said that he would rather be
with [Mother].” Id. at 95.
Thereafter, Legal Counsel did not ask further questions of Dr. Williams
and DHS’s other witness, Ashley Wolfe, the CUA caseworker who testified
regarding the difficulties she had contacting Mother after the January 17, 2019
hearing. Indeed, it appears that Legal Counsel was no longer present at the
July 16, 2019 hearing, as he was not asked to examine Dr. Williams on recross
examination, cross-examine Ms. Wolfe, or present arguments at the
conclusion of the hearing.
Having reviewed the parties’ arguments, the relevant law in this appeal,
and the record, we conclude that D.N.G. controls. Although Mother and the
GAL did not object to Legal Counsel’s representation of Child at the January
17, 2019 or the July 16, 2019 hearings, they raised the issue on appeal, and
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this Court will consider the arguments. See D.N.G., 230 A.3d at 366.
Moreover, to the extent DHS argues that Legal Counsel properly discharged
his duties by meeting with Child and setting forth Child’s preference on the
record, this Court has previously rejected similar arguments with respect to
Sibling 1. See id. As in D.N.G., Legal Counsel’s performance, and in
particular, his failure to advocate for permanent legal custody or argue that
Child’s consent was essential to adoption, was deficient. See id. Indeed, we
conclude that the concerns raised in D.N.G. as to Sibling 1, who was eleven
years old at the time the trial court terminated Mother’s parental rights,
resonate strongly here because Child was fifteen years old at the time of the
hearing and Legal Counsel failed to participate at all toward the end of the
July 16, 2019 hearing.
Lastly, just as D.N.G. compels the conclusion that Child was deprived
of his statutory right to legal counsel under Section 2313(a), our decision in
that case precludes this Court from engaging in a harmless error or prejudice
analysis as suggested by DHS. See id. at 367. Therefore, we decline to
address DHS’s assertion that any deficiency in Legal Counsel’s performance
would not have altered the outcome of the termination proceeding.
Accordingly, we conclude that Mother’s and the GAL’s challenges to
Legal Counsel’s representation of Child under Section 2313(a) have merit and
vacate the decree granting DHS’s petition to terminate Mother’s parental
rights to Child. See id.
Change in Permanency Goal
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Turning to the change in the permanency goal from reunification to
adoption, Mother argues that the trial court erred by failing to consider
whether “this family received all necessary services to achieve reunification.”
Mother’s Am. Brief at 9. The GAL claims that the trial court deprived Child of
his “best interest counsel” when the court denied her request to meet with
Child after he moved in with Sibling 1 and Sibling 1’s foster parent. GAL’s
Brief at 12. The GAL notes:
[Child] has rights to maintain a relationship with [Mother] that is
separate from Mother’s rights to [Child.] This is a significant
decision that has been ma[d]e for [Child] and should not be
rush[ed] because the [trial court] thinks Mother has had enough
time to meet her objectives. [Child] continues to reach out to
[M]other by phone and by running away to Mother’s home.
[Child] stated that he did not want to be adopted and he wanted
to live with his Mother. A viable alternative for this Child is
permanent legal custody . . . by the current [foster parent].
Id. at 15. Both Mother and the GAL also allude to Legal Counsel’s deficient
representation of Child as a basis for relief in the goal change proceeding. 7
See id.; Mother’s Am. Brief at 13.
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7 In contrast to L.B.M. and its progeny in the area of termination of parental
rights, our courts have not recognized a Child’s non-waivable statutory right
to separate legal counsel under 42 Pa.C.S. § 6311 in dependency proceedings.
Cf. In re J’K.M., 191 A.3d 907, 910, 916 (Pa. Super. 2018) (holding that the
trial court erred in denying a mother’s petition for the appointment of separate
legal counsel to represent a child in a dependency proceeding because there
was a conflict between the child’s best interests and legal interests, but noting
that the mother raised the issue in the trial court). Moreover, while Mother
and GAL both assert that Legal Counsel was deficient with respect to the
decree terminating Mother’s parental rights to Child and the order changing
the permanency goal to adoption, neither has explored the distinctions
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DHS responds that the record supported the trial court’s conclusion that
“it would be in Child’s best interest to achieve permanency through adoption.”
DHS’s Brief, 2294 EDA 2019 & 2295 EDA 2019, at 20. DHS notes that Ms.
Wolfe, the CUA case manager testified that Child told her that he wanted to
be adopted. Id. at 46 (citing N.T., 7/16/19, at 109).
The trial court addressed its decision to change the permanency goal
from reunification to adoption. See Trial Ct. Op. at 26-30. The trial court
addressed Mother’s minimal compliance with DHS and the negative impacts
on Child’s life. See id. at 26-29. The trial court further examined Child’s
improvements following his placement in a foster home with Sibling 1 and how
Child looks to the current foster parent as a primary caregiver. Id. at 29-30.
The trial court further stated that “[t]he DHS witnesses were credible” and
concluded that the goal change from reunification to adoption was proper. Id.
at 30. Notably, however, the trial court did not address Child’s preferences
regarding adoption, as was testified to by Legal Counsel or Ms. Wolfe, and at
no point in its comprehensive recitations of the evidence, did the trial court
allude to Ms. Wolfe’s testimony that Child told her he wanted to be adopted.
This Court reviews the trial court’s decision for an abuse of discretion.
See In re R.M.G., 997 A.2d 339, 345 (Pa. Super. 2010).
In order to conclude that the trial court abused its discretion, we
must determine that the court’s judgment was “manifestly
____________________________________________
between Child’s right to counsel in a termination proceeding under Section
2313 and in a dependency proceeding under Section 6311. For the reasons
stated herein, we need not address this issue.
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unreasonable,” that the court did not apply the law, or that the
court’s action was “a result of partiality, prejudice, bias or ill will,”
as shown by the record. We are bound by the trial court’s findings
of fact that have support in the record. The trial court, not the
appellate court, is charged with the responsibilities of evaluating
credibility of the witness and resolving any conflicts in the
testimony. In carrying out these responsibilities, the trial court is
free to believe all, part, or none of the evidence. When the trial
court’s findings are supported by competent evidence of record,
we will affirm, “even if the record could also support an opposite
result.”
Id. (citations omitted).
Section 6351(f.1) of the Juvenile Act states:
Based upon the determination made under subsection (f) [relating
to matters to be determined at a permanency hearing] and all
relevant evidence presented at the hearing, the court shall
determine one of the following:
(1) If and when the child will be returned to the child’s parent,
guardian or custodian in cases where the return of the child is
best suited to the safety, protection and physical, mental and
moral welfare of the child.
(2) If and when the child will be placed for adoption, and the
county agency will file for termination of parental rights in
cases where return to the child’s parent, guardian or custodian
is not best suited to the safety, protection and physical, mental
and moral welfare of the child.
(3) If and when the child will be placed with a legal custodian
in cases where the return to the child’s parent, guardian or
custodian or being placed for adoption is not best suited to the
safety, protection and physical, mental and moral welfare of
the child.
42 Pa.C.S. § 6351(f.1)(1)-(3).
This Court has stated:
Although a goal change to adoption is a step towards termination
of parental rights, it does not in fact terminate parental rights.
When the court allows [DHS] to change the goal to adoption, it
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has decided “[DHS] has provided adequate services to the parent
but that he/she is nonetheless incapable of caring for the child and
that, therefore, adoption is now the favored disposition.
Once the goal is changed to adoption, [DHS] is not required to
provide further services.
In re S.B., 943 A.2d 973, 978 (Pa. Super. 2008) (citations omitted).
With respect to permanent legal custody,
[t]he court may consider permanent legal custody, upon the filing
of a petition that alleges the dependent child's current placement
is not safe, and the physical, mental, and moral welfare of the
child would best be served if [subsidized permanent legal custody]
were granted. Upon receipt of this petition, the court must
conduct a hearing and make specific findings focusing on the best
interests of the child. The “court must find that neither
reunification nor adoption is best suited to the child's safety,
protection and physical, mental and moral welfare of the child” for
the court to name the custodian a “permanent legal custodian.”
Id. at 983 (citations omitted)
Instantly, as suggested above, there was uncertainty concerning Child’s
willingness or unwillingness to consent to adoption. N.T., 7/16/19, at 95
(indicating that Legal Counsel stated Child wanted to live with Mother and was
“fine” living with Sibling 1, but did not state whether he wanted to be
adopted). Because Child was fifteen at the time of the hearing and needed to
consent to adoption, we agree with the GAL that the present record does not
support the finding that the trial court appropriately considered Child’s best
interests or that its determination that a goal change to adoption was in Child’s
best interests. Even assuming reunification was not a viable permanency goal,
we conclude that the trial court abused its discretion when changing the
permanency goal to adoption without a more complete evaluation of and
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clearer findings of fact regarding Child’s willingness to consent to adoption.
See R.M.G., 997 A.2d at 345. Accordingly, we vacate the order granting
DHS’s petition for a goal change.
Conclusion
In sum, we vacate both the decree and order granting DHS’s respective
petitions for the termination of Mother’s parental rights and to change the
permanency goal to adoption. In light of our conclusion that Child did not
have the benefit of his statutory right to legal counsel for the purpose of
termination, we remand this matter for a new hearing on DHS’s petitions. See
D.N.G., 230 A.3d at 368. The trial court may determine whether to appoint
substitute counsel for Child or to direct Legal Counsel to determine and to
advocate zealously for Child’s legal interests. See id. The trial court, upon
consideration of the evidence at the hearing, shall also enter new findings of
fact and conclusions of law as to the appropriateness of a goal change.
Decree and order vacated. Cases remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/20
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