J-S35023-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.L., A MINOR

APPEAL OF: K.S.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 82 MDA 2018

Appeal from the Order December 14, 2017

In the Court of Common Pleas of Tioga County 

Orphans’ Court at No(s): 29 OC 2017

BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 21, 2018

K.S. (“Mother”) appeals from the order entered December 14, 2017, in 

the Court of Common Pleas of Tioga County, which involuntarily terminated 

her parental rights to her minor son, J.L. (“Child”), born in May 2009, pursuant 

to § 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. We are 

unfortunately constrained to vacate and remand for further proceedings 

consistent with this memorandum.

The trial court set forth the procedural and factual history of this matter, 

in part, as follows:

This matter is before the [c]ourt on the [p]etition for [i]nvoluntary 

[t]ermination of the [p]arental [r]ights of [K.S.], biological mother 

of [Child]. The [c]ourt notes this matter initially appeared in 

[d]ependency [c]ourt before Judge Robert Dalton in January of 

2011 following the grant of a petition for [e]mergency [p]rotective 

[c]ustody. In lieu of an adjudication hearing at that time, the child 

was removed from Mother’s custody and placed with the biological 

father, D.A. A second petition for [e]mergency [p]rotective 
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[c]ustody was filed and granted by Judge Joy McCoy in August of 

2014. Following a [s]helter [c]are [h]earing, the child was 

returned to the care of Mother and remained with Mother 

thereafter.

[Child]’s case returned to the [c]ourt’s attention on or about July 

8, 2015 with the filing of a third application for [e]mergency 

[p]rotective [c]ustody alleging a failure to supervise, issues of 

domestic violence and related concerns. The request for 

[e]mergency [p]rotective [c]ustody was granted. A [s]helter 

[c]are [h]earing was later held and [Child] was directed to remain 

in foster care. Dependency and amended [d]ependency 

[p]etitions were filed[,] and following continuances by both 

parties, an [a]djudication [h]earing later occurred resulting in the 

finding of [d]ependency as related to [Child,] and his continued 

placement in foster care.

[Child] has remained in the legal custody of [the] Department of 

Human Services pursuant to the [d]ependency action since July 

2015. During that time[,] the Department of Human Services has 

offered supportive services to Mother, including, but not limited 

to, the Effective Safe Parenting (ESP) and STEPS Programs. Tioga 

County has also supported housing and counseling services during 

this case. The Agency has further provided counseling and 

therapeutic support for [Child] and recommended the same for 

Mother. [Child] has been diagnosed as suffering from [r]eactive 

[a]ttachment [d]isorder and is receiving appropriate therapeutic 

services. Mother has often met with service providers, however, 

it has been reported on numerous occasions[,] and supported in 

prior [p]ermanency [r]eview [o]rders[,] that Mother has been 

unwilling to accept the advice offered through services and has 

regularly failed to follow through with the recommendations 

made, limiting the results of the services afforded.

Trial Court Findings of Fact and Opinion, 12/14/17, at unnumbered 2-3.

On March 10, 2017, the Tioga County Department of Human Services, 

Family Services Division (“DHS”), filed a petition for involuntary termination 

of parental rights, seeking to terminate Mother’s and Father’s parental rights 
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to Child. By order dated April 28, 2017, the trial court appointed attorney Jim 

Smith, Esquire, “to represent the legal interests of the minor child, J.L., in the 

above-captioned matter.” The trial court conducted hearings on the petition 

on October 17, 2017, November 29, 2017, and December 1, 2017. Both DHS 

and Mother called numerous witnesses. Mother testified on her own behalf. 

On December 14, 2017, the trial court issued findings of fact and an opinion, 

finding termination appropriate pursuant to § 2511(a)(1), (2), (5), (8), and 

(b) of the Adoption Act. The trial court entered an order involuntarily 

terminating Mother’s parental rights to Child. Mother timely filed a notice of 

appeal along with a concise statement of errors complained of on appeal. 

Prior to addressing the merits of Mother’s appeal, we must first address 

sua sponte the representation provided by Child’s legal counsel. See In re: 

K.J.H., 180 A.3d 411, 412-414 (Pa. Super. 2018). Our Supreme Court, in In 

re Adoption of L.B.M., 161 A.3d 172, 183 (Pa. 2017) (plurality) held that 23 

Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent the legal 

interests of any child involved in contested involuntary termination 

proceedings. The Court noted that legal interests are synonymous with the 

child’s preferred outcome, but the child’s best interests are determined by the 

court. See id. 

Since L.B.M., this Court has clarified the requirements counsel must 

meet in order to provide adequate representation in termination matters. See 

In re Adoption of T.M.L.M., 184 A.3d 585, 587-591 (Pa. Super. 2018). 

Counsel’s duty to represent a child does not stop at the conclusion of the 
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termination of parental rights hearing. See id., at 590. 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).

Here, the trial court appointed Attorney Smith as legal counsel for Child. 

Attorney Smith was present at the hearings and conducted cross-examination 

of witnesses. However, he did not indicate Child’s legal preference, and there 

is nothing in the record to demonstrate that he interviewed Child, who was 

nearly eight years old at the time, to ascertain his preferred outcome. And 

there is nothing in the record that clearly indicates Child’s preference. 

The record indicates Child “goes back and forth about where he wants 

to be.” N.T., 10/17/17, at 23. Later testimony indicated DHS placed Child in 

respite care in November 2017 when another foster child in the foster home 

sexually touched Child. See N.T., 12/1/17, at 25. Child reported to DHS he 

did not feel safe in the foster home, and did not want to go back. See id. 

However, Child has also discussed with his foster mother bringing his dirt bike 

over to his foster home when the foster parents adopts him. See id., at 27. 

Attorney Smith, in his concluding remarks, indicated he did not want to repeat 

the remarks and argument of Mother’s counsel. See N.T., 11/29/17, at 50.1 

____________________________________________

1 For reasons that are not clear from the record, the transcript labeled 

December 1, 2017, appears to be the testimony from November 29, 2017, 
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Attorney Smith noted, “[Mother] had been working towards, ... progress with 

continuing with services and continuing with whatever counseling that she had 

to do.” Id. He then stated, “what I want[] to focus most on, of course, is the 

best interest of the children,”2referencing the bond between Child and his 

brother. See id. Attorney Smith asserted the bond was “a very, very 

important consideration in their interest with, you know, having the 

opportunity to grow up with their mom.” Id., at 50-51. Further, Attorney 

Smith noted “[i]t seems that these children do indeed love their mother and 

care about her a great, great deal.” Id., at 50. Attorney Smith concluded:

So, Judge, I would just say, of course, considering the best 

interest of these children and, of course, the bond that they have 

with the mother, I think that’s a, ... vital import here. Thank you, 

Judge.

Id., at 51.

There is no evidence Attorney Smith spoke with Child, and Attorney 

Smith failed to clearly convey Child’s preferred outcome, focusing instead on 

his best interests. Compounding these issues, Attorney Smith did not file a 

brief in this Court, nor did he join the brief of another party.

Accordingly, we are constrained to vacate the order in this matter, and 

remand for further proceedings. See In re Adoption of T.M.L.M., 184 A.3d 

585, 587-591 (Pa. Super. 2018) (vacating and remanding for further 

____________________________________________

while the transcript labeled November 29, 2017, appears to be from December 

1, 2017, as it includes counsels’ closing remarks.

2 Attorney Smith represented both Child and his brother.
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proceedings where the attorney admitted she did not interview the nearly sixyear-old child to ascertain the child’s preferences). See also In re Adoption 

of D.M.C., ___ A.3d ___, 2018 WL 3341686 (Pa. Super., filed July 9, 2018) 

(vacating and remanding where the record was unclear in what capacity the 

attorney had been appointed to represent the children and whether the 

attorney had ascertained the children’s legal interests prior to the hearing); 

In re Adoption of M.D.Q., ___ A.3d ___, 2018 WL 3322744 (Pa. Super.,

filed July 6, 2018) (vacating and remanding where the record does not indicate 

that counsel attempted to ascertain the children’s preferences and the record 

does not reflect the children’s legal interests).

On remand, we direct the trial court to re-appoint legal counsel for Child 

forthwith. Counsel must attempt to ascertain Child’s preferred outcome as to 

Mother by directly interviewing Child, following his direction to the extent 

possible, and advocating in a manner that comports with Child’s legal 

interests. Once Child’s preferred outcome is identified, counsel shall notify the 

trial court whether termination of Mother’s parental rights is consistent with 

Child’s legal interests. 

If Child’s preferred outcome is consistent with the result of the prior 

termination proceedings, the trial court shall re-enter its December 14, 2017 

order as to Mother. If the preferred outcome is in conflict with the prior 

proceeding, the trial court shall conduct a new termination hearing as to 

Mother to provide Child’s legal counsel an opportunity to advocate on behalf 

of Child’s legal interests. See T.M.L.M., 184 A.3d at 591 (ordering that the
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trial court shall conduct a new hearing only if it serves the “substantive 

purpose” of providing the child with the opportunity to advance his legal 

interests through new counsel). 

Order vacated as to Mother without prejudice to permit the trial court 

to re-enter the original order if a new termination hearing is not required. 

Case remanded for proceedings consistent with this memorandum.

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/21/2018