J-S50045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF H.A.H., R.O.C.,

JR. AND O.Z.C.

APPEAL OF: J.M.H., NATURAL

MOTHER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 801 WDA 2018

Appeal from the Decree, April 23, 2018,

in the Court of Common Pleas of Cambria County,

Orphans' Court at No(s): 2017-831 IVT,

2017-832 IVT, 2017-833 IVT.

BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 15, 2018

Mother, J.M.H., appeals from the decrees entered April 23, 2018, which

granted the petition filed by Cambria County Children and Youth Service (CYS)

terminating her parental rights involuntarily to her three minor children: 8- year-old H.A.H., 3-year-old O.Z.C., and 17-month-old R.O.C., Jr. (collectively

Children). After review, we vacate the order without prejudice and remand

for further proceedings consistent with this memorandum.

CYS became involved with this family in March 2015 following

allegations of medical neglect. Then 7-month-old O.Z.C. had only been seen

by a pediatrician once since her birth and had no immunizations; Mother had

also missed five pediatrician appointments for H.A.H. See N.T., 1/29/18, at

37. CYS initially arranged services to stabilize the family, but then filed a

dependency petition in January 2016. The basis for the petition was Mother’s
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considerable lack of cooperation with service providers as well as Mother’s

positive tests for opiates, cocaine, and marijuana. Id., at 39-40. There were

also allegations of homelessness and Mother’s outstanding arrest warrant. Id., at 4.

Over the next two years, Mother was ordered to comply with a series of

goals that would facilitate reunification. As the dependency cases proceeded,

Mother’s compliance appeared to be minimal. For example, Mother attended

less than a quarter of her visits scheduled with Children.

In January 2018, the orphans’ court held a hearing on CYS’ termination

petition. Mother appeared with counsel at the hearing. The court appointed

Christopher G. Gvozdich, Esquire, to represent Children. At the conclusion of

the hearing, the court directed the parties to submit memoranda arguing their

respective positions. Thereafter, on April 23, 2018, the court entered

terminating decrees. Mother timely filed notices of appeal along with concise

statements of errors complained of on appeal.

Before addressing the merits of Mother’s appeal, we must consider sua

sponte whether Children’s counsel provided adequate representation of their

legal interests at the termination proceeding.

Appointment of counsel representing the children 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.A. § 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
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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., [180 A.3d 411 (Pa. Super. 2018)].

In re Adoption of M.D.Q., ---A.3d ---, 2018 PA Super 199, at *1-2. (Pa.

Super. July 6, 2018) (citing In re Adoption of T.M.L.M., 184 A.3d 585, 588

(Pa. Super. 2018)). The Adoption Act provides that children have the right to

representation by counsel in all contested involuntary termination

proceedings. The Act provides as follows, in relevant part:

(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). The term “counsel” in 23 Pa.C.S.A. § 2313(a) refers to an attorney

representing the child's legal interests who is directed by the child. In re

Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172, 180 (2017). As our Supreme

Court has emphasized, a child's legal interests are distinct from his or her best

interests. Id. at 174; see also In re T.S., --- A.3d ---, 2018 WL 4001825

(Pa. August 22, 2018). A child's legal interests are synonymous with his or

her preferred outcome, while a child's best interests must be determined by

the trial court. Id.
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This Court has further articulated that a remand is necessary when it is

unclear whether the children’s counsel advocated for their best interests or

their legal interests. See M.D.Q., supra, 2018 PA Super 199, at *3. In

M.D.Q., the children’s counsel was a separately appointed attorney, as

opposed to a guardian ad litem who was tasked with representing the

children’s non-conflicting legal and best interests. Id., at FN 1. There, counsel

clearly advocated for termination of Mother’s rights, yet we remanded to allow

the children’s counsel to conduct an additional interview of the children to

discern their preferred outcomes directly. In that case, we could not tell from

the record whether the source of the counsel’s advocacy was the children’s

preferred outcome or whether the advocacy was driven by the counsel’s own

belief as to what was in the children’s best interests. Id.

This case presents a factual predicate so similar to M.D.Q. that we are

constrained to follow suit.

In M.D.Q., the orphans’ court directed the parties to submit posttestimony briefs arguing their respective positions regarding termination of

the mother’s parental rights. Counsel stated that she spoke with the children

to discuss their positions on termination. Id. The court determined, based on

counsel’s brief, that the children saw their stepmother as fulfilling the parental

role; termination of the mother’s rights would have no great impact on the

children; and the mother’s spotty involvement would detrimentally impact the

children’s emotional needs. Id. On appeal, the children’s counsel submitted

a brief with our Court, but the appellate brief did not provide any more
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information about the children’s preferred outcomes. Id. We held that

counsel’s representation was insufficient. In doing so, we explained that while

counsel may have interviewed the children and spoken to them about their

mother, it did not appear that counsel asked, or attempted to ask, what the

preferred outcomes were. Id. We supposed that it may be that the children

were not able or willing to state a preferred outcome, but there is no indication

of that in the lower court’s description either. Finally, we were unable to glean

the children’s preference anywhere else in the record. Id.

When comparing M.D.Q. with instant case, we observe the following

similarities:

Attorney Gvozdich was appointed as an attorney for Children. He

participated in this case by cross-examining witnesses; he made no mention

of Children’s preferred outcomes on the record, and presented no argument

or statement on their behalf. At the conclusion of the hearing, the court

directed the parties to submit memoranda arguing their position. Attorney

Gvozdich’s memorandum listed himself as “legal counsel,” which has become

something of a term-of-art as courts have implemented our Supreme Court’s

holding in L.B.M. See CYS’ Brief, at Appendix 2. Attorney Gvozdich’s posttestimony memorandum thoroughly argued for termination. But, as far as

Children’s preferred outcome was concerned, Attorney Gvozdich’s explanation

was ambiguous:

Only [8-year-old] H.A.H. is of a suitable age that legal

counsel [Attorney Gvozdich] was able to converse with him

in a manner designed to elicit answers that would be helpful
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to representation of my clients’ in the Court proceedings.

My conversation with H.A.H. painted an overall picture of a

child who is satisfied with whom and where he resides.

Id.

While Attorney Gvozdich held himself out as legal counsel and

interviewed H.A.H., we still have no basis to conclude that H.A.H. was provided

with counsel who represented his legal interests and took direction from

H.A.H. to the extent possible. See M.D.Q., at *4. At the time of the hearing,

H.A.H. was 8 years old. He had spent the first six years of his life with Mother.

Mother testified that H.A.H. loves her, is bonded to her, and would not believe

any negative thing said about her. N.T., at 140-141. Although Attorney

Gvozdich explained that H.A.H. is “satisfied” with his current living situation,

there was still no indication that H.A.H. would prefer this current situation over

termination, which necessarily includes a very real possibility that he would

never see Mother again, or at least not until he reaches the age of majority.

Like M.D.Q., what little indication exists in the record addressing H.A.H.’s legal

interests suggests that there may have even been a conflict between counsel’s

stated position and H.A.H.’s preferred outcome.

We agree with Attorney Gvozdich’s assessment that the younger siblings

(ages 3 and 17 months) were too young to articulate a preferred outcome. Thus, the younger siblings’ cases do not pose the problem that H.A.H.’s case

does. In their cases, we need not resolve the ambiguity of whether Attorney

Gvozdich represented their best interests or legal interests. Where an

attorney advocates for the children’s best interests in a contested termination
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hearing, § 2313(a) does not require the appointment of another lawyer to

advocate for the children’s legal interests when their preferred outcome is

unknowable on account of the children’s young age. See T.S., 2018 WL

4001825, at *7. In other words, even if Attorney Gvozdich only represented

the younger siblings’ best interests, his representation could not have run

afoul of § 2313(a) because they were too young to articulate a preferred

outcome. Nevertheless, all three Children’s cases must be remanded, because

all three may be impacted by H.A.H.’s preferred outcome.

In the event that H.A.H.’s preferred outcome does not align with

termination, the orphans’ court would be required to conduct a new hearing. A new hearing would necessitate a new 23 Pa.C.S.A. § 2511(b) analysis, which

could affect not only H.A.H.’s case, but also to the cases of the younger

siblings. This possibility may be remote, but our remand must account for it

nevertheless. We acknowledge that H.A.H.’s preferred outcome, even if inconsistent

with termination, might still not be enough to change the end result. Likewise,

we are aware that Attorney Gvozdich and the orphans’ court did not have the

benefit of either of our decisions in T.M.L.M. (184 A.3d 585) or in M.D.Q.

(2018 PA Super 199), nor the Supreme Court’s holding in T.S. (2018 WL

4001825) when this termination hearing occurred. But it is paramount that

the law safeguards the rights of children, who cannot advocate for these rights

themselves. Eventually, the “legal counsel” growing pains will ease as local
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jurisdictions enforce § 2313(a) as it was intended. Until then, we are

constrained to remand ambiguous cases like this. Because of the deficiency of information here, we are constrained to

vacate the decrees terminating Mother’s parental rights involuntarily, and

remand for counsel to conduct an additional interview with H.A.H. to discern

and articulate his legal interests. Once Attorney Gvozdich has done so, he

must notify the orphans’ court. If H.A.H. express preferred outcome is

consistent with the result of the prior proceeding, or if H.A.H. is unable or

unwilling to articulate a clear preferred outcome, the court may reenter its

termination decrees. If H.A.H.’s preferred outcome is inconsistent with the

result of the prior proceeding, the court must conduct a new termination

hearing, with counsel actively advocating for H.A.H.’s legal interests. See

M.D.Q., --- A.3d ---, 2018 PA Super 199, at *5.

Order vacated without prejudice to permit the orphans’ court to reenter

the original order if a new hearing is not necessary. Case remanded for further

proceedings consistent with this Memorandum. Jurisdiction relinquished.

Judge Bowes joins in the Memorandum.

Judge Ott concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/15/2018