J-S82014-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: E.P.-J.C., A.A.-

S.C., MINORS

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: M.C., NATURAL MOTHER

No. 494 WDA 2017

Appeal from the Order Entered March 13, 2017

In the Court of Common Pleas of Lawrence County

Orphans' Court at No(s): 

20040 of 2015 OC-A, No. 28 of 2012DP

20038 of 2015 OC-A, No. 27 of 2012 D

IN THE INTEREST OF: E.P.-J.C., A.A.-

S.C., MINORS

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: M.C., NATURAL MOTHER

No. 495 WDA 2017

Appeal from the Order Entered March 13, 2017

In the Court of Common Pleas of Lawrence County

Orphans' Court at No(s): 

20038 of 2015 OC-A, No. 28 of 2012, D.P.

20040 of 2015 OC-A, No. 27 of 2012 D.P.

IN THE INTEREST OF: E.P.-J.C., A.A.-

S.C., MINORS

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: M.C., NATURAL MOTHER

No. 496 WDA 2017

Appeal from the Order Entered March 13, 2017

In the Court of Common Pleas of Lawrence County

Orphans' Court at No(s): 

20038 of 2015 OC-A

20040 of 2015 OC-A

27 of 2012, D.P.

28 of 2012, D.P.

IN THE INTEREST OF: E.P-.J.C., A.A.- IN THE SUPERIOR COURT OF
J-S82014-17

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S.C., MINORS PENNSYLVANIA

APPEAL OF: M.C., NATURAL MOTHER

No. 497 WDA 2017

Appeal from the Order Entered March 13, 2017

In the Court of Common Pleas of Lawrence County

Orphans' Court at No(s): 

20038 of 2015 OC-A

20040 of 2015 OC-A

27 of 2012, D.P.

28 of 2012, D.P.

BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 11, 2018

M.C. (“Mother”) appeals from the March 13, 2017 orders that granted 

the petitions filed by the Lawrence County Children and Youth Services

(LCCYS) to involuntarily terminate her parental rights to A.A.-S.C., born in 

February of 2009, and E.P.-J.C., born in February of 2010 (“Children”).

1,2

 

We vacate and remand. 

The trial court set forth an extensive factual and procedural history of 

this case, explaining that:

____________________________________________

* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.

1 L.C.’s (“Father”) parental rights were also involuntarily terminated. 

However, he is not a party to this appeal; nor are we aware that he has filed 

an appeal. 

2 Mother’s appeals were consolidated sua sponte by order of this Court, 

dated April 19, 2017. 
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[Children] were removed from their parents’ home on April 5, 

2012, because of a criminal investigation of [Mother] and 

[Father] based on allegations of child sexual abuse. A shelter 

care order was entered and [C]hildren were placed in foster 

care. A dependency petition was filed on April 20, 2012[,]

alleging that the New Castle Police Department was investigating 

allegations of sexual abuse wherein the parents were listed as 

perpetrators. Upon the filing of a Motion to Transfer in May 

2012, [C]hildren were placed in kinship care in the home of 

maternal aunt and uncle.... [C]hildren were adjudicated 

dependent by Order entered on August 16, 2012. [C]hildren 

remained in the [kinship care] home until LCCYS’s Motion to 

Transfer was granted in November 2016. [C]hildren are now in 

foster care.

As a result of the criminal investigation, [Mother] was

charged with committing various offenses involving sexual abuse 

committed on child victims that occurred in [Mother’s] and 

[Father’s] home. On November 6, 2014, pursuant to a plea 

arrangement, [Mother] entered a plea of guilty to corruption of 

minors (non-sexual), a first[-]degree misdemeanor, and was 

sentenced to three years of probation.

Trial Court Opinion (TCO), 3/13/17, at 1-2. 

The trial court further discussed additional actions of Mother and 

Father, noting that upon Mother’s objection, her probation was modified to 

allow her to visit with Children. Meanwhile, Father was found guilty of rape, 

involuntary deviate sexual intercourse, statutory sexual assault, sexual 

assault, and aggravated indecent assault, which resulted in a finding of 

aggravated circumstances and eliminated his contact with Children. 

Regardless of these circumstances, during the summer of 2015, both Mother 

and Father were not incarcerated, i.e., Mother was on probation and Father 

was free on bail awaiting sentencing. 

However, [Father] absconded. An arrest warrant was 

issued. As part of their efforts to locate [Father], the authorities 
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questioned [Mother] regarding her knowledge of her husband’s

whereabouts. [Mother] falsely told the authorities that [Father]

and other individuals had come to her house, had knocked her 

out and raped her, and that [Father] had left and she did not

know where he might be. However, upon search of the 

residence, the police found [Father] hiding behind a partition in 

the attic, and [Father] was re-arrested on July 15, 2015.

TCO at 4.3 The court also stated:

[Mother] was charged with harboring a fugitive, hindering 

apprehension and related offenses. On November 19, 2015, 

[Mother] entered a plea of guilty to hindering apprehension, a 

third degree felony. 

As a result of her plea and conviction o[n] the new 

charges, [Mother's] probation was revoked and she was resentenced on the charge of corruption of minors to incarceration

for a minimum of 127 days and a maximum of 2 years, to be 

followed by 2 years of probation, with credit for time served of 

127 days.

On November 19, 2015, [Mother] was sentenced on the 

new charge of hindering apprehension to incarceration for a 

minimum of 1 year and a maximum of 2 years, followed by 2 

years of probation, to be served concurrently with the sentence 

imposed on her probation revocation. At the time of the last 

hearing session, [Mother] was serving her sentence in a state 

correctional institution but had recently appeared at a parole 

hearing.

Id. 

The trial court further explained that in April of 2012, when Children 

were adjudicated dependent, a permanency plan was adopted. Both parents 

substantially complied and visits between parents and Children generally 

____________________________________________

3

In August of 2015, Father was sentenced to a term of incarceration of 16 

years 9 months to 36 years, and was designated as a sexually violent 

predator. He has no contact with Children. 
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went well. However, after the new criminal charges were filed, new 

sentences were imposed, and Mother was transferred to a state correctional 

institution. At that point, Mother only had telephone contact. The court 

determined that,

from her actions and testimony, and absence of expressions of 

condemnation and genuine remorse, it must be concluded that, 

despite the evidence against her husband, Mother does not 

consider [Father] to have committed the offenses of which he 

was convicted, and has not internalized the seriousness of the 

offenses committed against the victims or of her conviction and 

subsequent conduct, and does not appreciate the effect on the 

welfare of [Children].

Id. at 6. However, the court found that “a bond exists between [Children] 

and [Mother].” Id. at 7. The court also noted that “[i]t was stipulated that, 

if called to testify, [Children] would have stated that a strong bond exists 

with [Mother], and that they want to be returned to [Mother].” Id. The 

LCCYS caseworker testified that despite the stipulation, she believed 

termination of parental right would be in Children’s best interests. Likewise, 

the guardian ad litem (GAL), who filed a brief with the trial court, “argu[ed]

that the criteria for termination contained in Section 2511(a)(8) and Section 

2511(b) of the Adoption Act, 23 Pa.C.S. §§ 2511(a)(8), 2511(b), have been 

satisfied, and that termination would best serve the needs and welfare of 

[Children].” Id. 

The trial court concluded that the conditions that led to the removal 

and placement of Children continued to exist and that the requirements of 
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Section 2511(a)(8) were met. With regard to Section 2511(b), the trial 

court stated that:

It is significant that a strong bond remains between 

[Children] and [Mother]. However, given the above findings 

regarding [Mother’s] conduct and attitude toward the criminal 

conduct of, and her alignment with [Father], the further finding 

must be made of a substantial risk to [Children] if returned to 

the care of [Mother]. That substantial risk may not be 

disregarded. The [c]ourt agrees with the [GAL’s] 

recommendation that the existence of a bond between 

[Children] and [Mother] does not outweigh the evidence of 

[Mother’s] disregard for [Children’s] welfare shown by the 

evidence of her conduct reported, supra. The record clearly 

warrants the conclusion that [C]hildren’s developmental and 

emotional needs and welfare would not be served by 

maintenance of the parental bond. 

Id. at 10-11. Accordingly, the court entered the orders terminating Mother’s 

parental rights to Children. 

Mother filed this timely appeal and now raises the following issues for 

our review:

1. Whether their [sic] exists competent evidence to support the 

trial court’s finding that [M]other’s parental rights should be 

terminated? 

2. Whether the trial court erred in terminating [M]other’s parental 

rights in light of the stipulation of a strong bond existing 

between [M]other and her [Children]?

3. Whether the trial court erred in finding that the termination of 

[M]other’s parental rights was in the best interest of [Children]? 

4. Whether the court erred in failing to provide legal counsel for the 

minor children separate from the guardian ad litem?

Mother’s brief at 7. 
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We must first turn to Mother’s fourth issue, which relates to her 

allegation of error that the court failed to provide legal counsel for the minor 

children in addition to the attorney appointed as their GAL. We initially rely 

on this Court’s decision in In re D.L.B., 166 A.3d 322 (Pa. Super. 2017), to 

respond. Mother points out that the order in this case was issued two weeks 

prior to the Supreme Court’s decision in In Re: Adoption of L.B.M., 161 

A.3d 172 (Pa. 2017), which she claims requires “the trial court to appoint a 

separate, independent attorney to represent the children’s legal interests in 

a [t]ermination of [p]arental [r]ights case, and it is error to rule that the 

[GAL’s] involvement suffices to satisfy [23 Pa.C.S. §] 2313(a).”4 Mother’s 

brief at 17. 

In the D.L.B. case, with reliance on the L.B.M. decision, this Court 

stated that “23 Pa.C.S. [] § 2313(a) requires the trial court to appoint 

counsel for a child in a termination of parental rights (TPR) case, and that 

____________________________________________

4 Section 2313(a) 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). 
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the failure to do so is structural and can never be harmless.” D.L.B., 166 

A.3d at 329. However, the D.L.B. case further provides:

As a point of information, Justice Wecht’s opinion in L.B.M.

states that the trial court is required to appoint a separate, 

independent attorney to represent a child’s legal interests even 

when the child’s GAL, who is appointed to represent the child’s 

best interests, is an attorney. Justice Wecht would hold that the 

interests are distinct and require separate representation. While 

Justice Wecht, joined by Justices Donohue and Dougherty, 

sought to so hold, four members of the court, Chief Justice 

Saylor and Justices Bae, Todd, and Mundy disagreed in different 

concurring and dissenting opinions with that part of the lead 

opinion’s holding. Specifically, while the other justices agreed 

that the appointment of counsel for the child is required in all 

TPR cases and that the failure to do so by the trial court is a 

structural error, they did not join that part of Justice Wecht’s 

opinion which sought to hold that the GAL may never serve as 

counsel for the child. Rather, such separate representation 

would be required only if the child’s best interests and legal 

interests were somehow in conflict. 

D.L.B., 166 A.3d at 239. 

We are also aware of a very recent opinion issued by this Court, 

wherein we recognized that “[t]his 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 

Adoption of: T.M.L.M., ___ A.3d ___, 2018 PA Super 87, *2 (filed April 13, 

2018) (citing In re K.J.H., ___ A.3d ___, 2018 PA Super 37 (filed February 

20, 2018)). In the T.M.L.M. case, this Court stated that,

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 [the 

c]hild wants no contact with [the m]other. [The c]hild may be 

unable to articulate a clear position or have mixed feelings about 
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the matter. Furthermore, termination of [the m]other’s rights 

may still be appropriate even if [the c]hild prefers a different 

outcome. However, pursuant to the Supreme Court’s opinion in 

Section 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. 

T.M.L.M., 2018 PA Super at *4. Accordingly, the termination order in 

T.M.L.M. was vacated by this Court and the case was remanded for the 

appointment of counsel to represent the child’s legal interests. In contrast, 

the D.L.B. Court found the child’s best interests and legal interests were not 

in conflict and were represented by the attorney appointed as the child’s 

GAL. 

Here, Deborah A. Shaw, Esq., who represented Children at the 

termination hearing and filed a brief in conjunction with this appeal, was 

acting in the capacity of a GAL, and was asserting only Children’s best 

interests. In fact, the thrust of Attorney Shaw’s arguments in her brief 

support the court’s decision to terminate Mother’s parental rights. With the 

conflict established by this record, Attorney Shaw cannot represent 

Children’s legal interests at the same time. This is evident in light of the 

stipulation entered into by the parties that Children wish to live with Mother 
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when she is no longer incarcerated.5 Having only advocated for Children’s

best interests and not their legal interests, Children were “deprived 

impermissibly of [their] statutory right to counsel serving [their] legal 

interests.” T.M.L.M., 2018 PA Super at *4. Therefore, we are compelled to 

vacate the order terminating Mother’s parental rights and remand for the 

trial court to appoint separate counsel to represent Children’s legal interests. 

Because the record supports a finding that Children’s best interests and their 

legal interests are in conflict, a new hearing is necessary so that counsel can 

advocate on Children’s behalf. 

Orders vacated. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/11/2018

____________________________________________

5 Attorney Shaw noted in her brief that Mother’s maximum date for release 

from prison was November 17, 2017, and that her probation ends on 

November 19, 2019. See Attorney Shaw’s brief, at 6. 
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