J-A31041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: L.R.J.P., A 

MINOR

APPEAL OF: T.T., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1664 EDA 2017

Appeal from the Order Entered May 2, 2017

in the Court of Common Pleas of Philadelphia County Family Court at 

No(s): CP-51-AP-0001013-2016

IN THE INTEREST OF: J.M.C.P., A 

MINOR

APPEAL OF: T.T., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1666 EDA 2017

Appeal from the Order Entered May 2, 2017

in the Court of Common Pleas of Philadelphia County Family Court at 

No(s): CP-51-AP-0001014-2016

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 25, 2018

Appellant, T.T. (“Mother”), files this appeal from the orders entered May 

2, 2017, in the Philadelphia County Court of Common Pleas, granting the 

petitions of the Philadelphia Department of Human Services (“DHS”) and 

involuntarily terminating her parental rights to her minor male children, 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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L.R.J.P., born in August of 2007, and J.M.C.P., born in December of 2011, 

(collectively, the “Children”) pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), 

(8), and (b).

1

 After review, we vacate the orders involuntarily terminating 

Mother’s parental rights to the Children without prejudice and remand for 

proceedings consistent with this memorandum.

The trial court summarized the relevant procedural and factual history, 

in part, as follows:

The family in this case became known to DHS on June 8, 2014, 

when DHS received a Child Protective Services (“CPS”) report 

which alleged that the Children’s then sixteen-year-old brother

(“Sibling 1”) forced his sister (“Sibling 2”) and her friend to 

perform oral sex on him. . .Mother states she never saw any signs 

that Sibling 1 had sexually abused Sibling 2. . . .The Children, at 

the time, were living in a home with Mother, [Father], Sibling 2, 

and two brothers (“Sibling 3” and “Sibling 4”). Mother admitted 

to having a learning disability and that she was the primary 

caretaker for the children. In July 2014, Sibling 2 reported sexual 

abuse and inappropriate touching from Sibling 3 and Sibling 4. 

DHS obtained an [Order of Protective Custody (“OPC”)] for Sibling 

2, after which she was adjudicated dependent, and she was placed 

in a foster home through [Asociación Puertorriqueños en Marcha 

(“APM”)], where she currently remains. Mother was referred to 

the CEU for monitoring, and a forthwith drug screen, as well as to 

Behavioral Health Systems (“BHS”) for a consultation and 

evaluation. Mother was also referred for a parenting capacity 

evaluation (“PCE”). In August 2014, Mother reported that she was 

diagnosed with depression two years before, but did not take any 

medication. Mother has a history of using marijuana. In January 

2015, DHS received a General Protective Services (“GPS”) report 

____________________________________________

1 By separate orders entered the same date, the trial court involuntarily 

terminated the parental rights of B.P. (“Father”) with respect to the Children. 

The court additionally involuntarily terminated the parental rights of any 

unknown father as to L.R.J.P. Father filed appeals, which this Court 

consolidated and addressed in a separate memorandum.
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alleging that the Children’s sibling (“Sibling 5”) disclosed that the 

[f]ather was physically abusive to Mother; that Father last abused 

Mother in August 2014 and Sibling 5 intervened; that Father 

attacked Sibling 5 when he intervened; that Father had a history 

of hitting the Children and their siblings; and that Sibling 5 lives 

with his father and spends weekends at Mother and Father’s 

home. The report was substantiated.

On November 5, 2015, DHS visited Mother and Father’s home and 

learned that there was no gas service in the home; that the 

refrigerator did not function properly; that the home was dirty; 

and that there was insufficient food in the home. On December 

11, 2015, Mother’s Clinical Evaluation Unit (“CEU”) drug screen 

showed traces of cocaine and her creatinine level was 40mg/d1. 

On December 18, 2015, DHS filed urgent dependency petitions for 

the Children, Sibling 3, and Sibling 4. On December 24, 2015, the 

Children were adjudicated dependent. The court ordered DHS to 

supervise, but cautioned parents that the children would be placed 

if parents did not comply with all of the court’s orders. The court 

ordered [Community Umbrella Agency (“CUA”)] to assist with a 

house cleaning service and exterminator for the family; to provide 

beds and bedding for the family; to order a refrigerator; to 

conduct pop-up visits; parents to comply with safety plans and all 

social workers. The court also ordered Mother to continue her 

dual diagnosis program at Chances;. . .and Mother. . .to be 

referred to the CEU for forthwith drug screens, assessments, and 

random screens.

At a review hearing on March 22, 2016, CUA testified that the 

home had been exterminated and cleaned and that the new bunk 

bed and refrigerator were provided. The court found that the 

Children, Sibling 3, and Sibling 4 were not safe in Mother and 

Father’s care, discharged supervision, and ordered all four 

children to be committed to DHS. Mother and Father were granted 

weekly supervised visits. On June 9, 2016, at an emergency 

hearing, CUA testified that Mother reportedly picked up 

[L.R.J.P.’s] attention deficit hyperactive disorder (“ADHD”) 

medication from the pharmacy and sold it for money. When 

confronted by CUA, Mother admitted to selling the medication 

because she needed money. CUA also testified that Mother 

brought her sister (“Maternal Aunt”) to a therapy session with the 

Children and Maternal Aunt threatened the Children’s foster 

parent. Following phone calls with Mother. . .,the Children’s 

negative behaviors would increase. . . .The court ordered all 

visitation to be supervised at the agency, line of sight and line of 
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hearing. The court also ordered no more phone calls between the 

parents and the Children until further order of the court, and 

Mother and Father were ordered not to contact the foster parents 

directly. Mother was ordered not to attend any further therapy 

appointments for the Children until recommended by their 

therapists, and to go to the CEU for a forthwith drug screen and 

three random screens.

On July 1, 2016, at a permanency review hearing, the court found 

Mother. . .to be minimally compliant with [her] SCP objectives. 

The court ordered Mother to be re-referred to the CEU for a 

forthwith drug screen, dual diagnosis assessment, and three 

random screens; to sign necessary consents and releases; to be 

re-referred for parenting classes; and to be granted her line of 

sight and line of hearing supervised visits. . . .

On October 26, 2016, DHS filed petitions to terminate Mother’s 

and Father’s parental rights and change the permanency goal for 

the Children from reunification to adoption. At the time, the

Children had been in care for eight months at the start of the 

termination trial and fourteen months at the conclusion. The 

Children have been active with DHS for twenty-six months.

Trial Court Opinion (“T.C.O.”), 7/25/17, at 1-3.

The trial court held hearings on the petitions on November 14, 2016, 

February 1, 2017, February 16, 2017, March 10, 2017, and May 2, 2017.2 In 

support thereof, DHS presented the testimony of the following: Dr. William 

Russell, a forensic psychologist who was stipulated as an expert as to 

parenting capacity evaluations and completed parenting capacity evaluations

of both Mother and Father; Jennifer Rollins, CUA case manager supervisor, 

APM; and Dominique Bibbs, CUA case manager, APM. Father was present and 

testified on his own behalf. He additionally presented the testimony of his 

____________________________________________

2 The court convened on May 2, 2017, to announce its decision with respect 

to DHS’ petitions.
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mother, C.K., paternal grandmother. Mother, while present, declined to 

testify on her own behalf or present any evidence. Children were represented 

by a Child Advocate, Shannon Parker, Esquire, who presented the testimony 

of Jessica Spurgeon, child advocate social worker.3 

Following the hearing, on May 2, 2017, the trial court entered orders 

involuntarily terminating the parental rights of Mother pursuant to 23 

Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and orders changing the 

Children’s permanency goal to adoption. On May 31, 2017, Mother, through 

appointed counsel, filed notices of appeal, along with concise statements of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 

Mother filed amended concise statements of errors complained on appeal on 

June 1, 2017. This Court consolidated Mother’s appeals sua sponte on June 

28, 2017.4

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3 Notably, Attorney Parker’s office, the Defender’s Association Child Advocacy 

Unit, was appointed by the trial court on December 21, 2015, during the 

pendency of the dependency proceedings, as counsel and guardian ad litem

to represent the Children. Such appointment was to represent the Children’s 

interests in connection with proceedings related to abuse, dependency, 

termination of parental rights, adoption and/or custody. Order Appointing 

Counsel, 12/21/15. 

4 As Mother does not appeal the orders changing Children’s permanency goal 

to adoption, any such claims related thereto are not preserved. Pa.R.A.P. 

903(a) (a notice of appeal shall be filed within thirty days after the entry of 

the order from which the appeal is taken). Moreover, any such opposition 

would be waived as Mother failed to include this issue in the Statement of 

Questions Involved section of her brief and failed to present argument as to 

this issue in her brief. See Krebs v. United Refining Co., 893 A.2d 776, 
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On appeal, Mother raises the following issues for our review: 

1. Whether the [t]rial [c]ourt erred in [t]erminating [Mother’s]

[p]arental [r]ights under 23 Pa.C.S.A. section 2511(a)(1), the 

evidence having been insufficient to establish Mother had 

evidenced a settled purpose of reli[n]quishing parental claim, or 

having refused or failed to perform parental duties[?]

2. Whether the evidence was sufficient to establish that [Mother]

had refused or failed to perform parental duties, caused [the 

C]hildren to be without essential parental care, that [the] 

conditions having led to placement had continued to exist, or 

finally that any of above could not have been remedied[?]

3. Whether the [e]vidence was sufficient to establish that 

[t]ermination of [p]arental [r]ights would best serve the [n]eeds 

and [w]elfare of the [m]inor Children, under 23 Pa.C.S.[A.]

section 2511(b)[?]

4. Whether the [t]rial [c]ourt erred in failing to continue the 

[m]atter for the purpose of appointing additional [c]ounsel as an 

advocate for the [Children], so that newly appointed [c]ounsel 

may represent the [Children’s] legal interest[?]

Mother’s Brief at 5.

We first address Mother’s issue as to the appointment of counsel to 

represent Children’s legal interests. Mother argues that the trial court erred 

in not granting her motion for separate legal-interests counsel due to evidence 

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797 (Pa.Super. 2006) (stating that a failure to preserve issues by raising them 

both in the concise statement of errors complained of on appeal and statement 

of questions involved portion of the brief on appeal results in a waiver of those 

issues); see also In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011), appeal 

denied, 611 Pa. 643, 24 A.3d 364 (2011) (quoting In re A.C., 991 A.2d 884, 

897 (Pa.Super. 2010)) (“[W]here an appellate brief fails to provide any 

discussion of a claim with citation to relevant authority or fails to develop the 

issue in any other meaningful fashion capable of review, that claim is 

waived.”); see also In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 

2017). 
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suggesting a preference of the Children contrary to termination of Mother’s 

parental rights. Mother’s Brief at 17. She states,

Nevertheless,. . .[m]otion was made (which was summarily 

rejected) to continue the matter so that [the] Children’s legal 

interest may be preserved. [Mother] would submit this was all 

the more important; due as previously mentioned, that at the 

visits the boys would always run to [Mother] in an [sic] excitement 

and that they desired to go home. Thus, [Mother] would aver that 

the [t]rial [c]ourt erred in not appointing separate counsel.

Id.5 

As to the appointment of counsel to represent a child in involuntary 

termination proceedings, 23 Pa.C.S.A. § 2313(a) provides:

§ 2313. Representation. 

(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.A. § 2313(a).

Our Supreme Court, in In re Adoption of L.B.M., 639 Pa. 428, 441-

42, 161 A.3d 172, 180 (2017) (plurality), held that Section 2313(a) requires 

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5 While the Child Advocate raises the issue of waiver for Mother’s failure to 

raise the issue timely and appropriately before the lower court, Child 

Advocate’s Brief at 15-16, we do not find waiver. In re T.S., --- A.3d 

---, 2018 WL 4001825, at *5 (Pa. Aug. 22, 2018) (“We conclude, then, that 

the failure of any party,. . ., to affirmatively request separate counsel for the 

children cannot have constituted waiver.”).
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that counsel be appointed to represent the legal interests of any child involved 

in a contested involuntary termination proceeding. The court defined a child’s 

legal interests as synonymous with his or her preferred outcome and distinct 

from a child’s best interests, which must be determined by a court. Id. at 

432, 174-75.

In L.B.M., four justices agreed that a guardian ad litem who is an 

attorney may act as counsel pursuant to Section 2313(a) so long as the dual

roles do not create a conflict between the child’s best interest and legal 

interest. Id. at 447-62, 183-93. Recently, in In re T.S., supra, our Supreme 

Court re-affirmed this legal principle, and in so doing, it acknowledged that 

this Court had on multiple occasions recognized the majority view expressed 

in L.B.M. See In re T.S., supra at *6 (citing D.L.B., 166 A.3d 322 (Pa.Super. 

2017) and In re Adoption of T.M.L.M., 184 A.3d 585, 588 (Pa.Super. 

2018)).

In T.M.L.M., which involved a child who was just under six years old at 

the time of the hearings to terminate his mother’s parental rights, the child’s 

attorney did not attempt to interview him, nor did she set forth his preferred 

outcome on the record. T.M.L.M., 184 A.3d at 589-90. The attorney 

advocated solely for the child’s best interests during the hearings, rather than 

his legal interests. Id. at 590. Additionally, the attorney did not file a brief 

on appeal, nor did she join a brief filed by another party. Id. Our Court 
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concluded that the child had been deprived of his statutory right to counsel, 

stating:

At the time of the hearings, Child was just shy of six years old. 

While Child may not have been old enough to participate actively 

in [the attorney’s] representation of him, it is not unlikely that 

Child has feelings one way or another about his mother and his 

permanency. Like adult clients, 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 Child’s preferred outcome in this case is 

synonymous with his best interests. It may be that Child wants 

no contact with Mother. Child may be unable to articulate a clear 

position or have mixed feelings about the matter. Furthermore, 

termination of Mother’s rights may still be appropriate even if 

Child prefers a different outcome. However,. . .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.

Id. Accordingly, we vacated the order terminating the mother’s parental 

rights and remanded for appointment of legal counsel. Id. at 591.

In the case sub judice, the Children, who were nine and five years old 

at the time of the commencement of the termination proceedings, were 

represented by a Child Advocate, Shannon Parker, Esquire. Attorney Parker 

was appointed by the court and participated throughout the dependency 

proceedings and actively participated in the termination proceedings on behalf 

of the Children, questioning witnesses, presenting evidence, and making 

argument. However, we observe that nowhere in the certified record is there 

an indication that Attorney Parker was serving in a dual role representing the 

Children’s best interests and legal interests. There is no indication in the 
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certified record that Attorney Parker met with or interviewed either child 

related to their preferred outcome. Further, she advocated on behalf of their 

best interests and argued in support of termination based on their best 

interests. Lastly, to the extent the record reflects the Children’s legal 

interests, it suggests that a conflict may have existed between counsel’s 

support of the termination petition and their preferred outcome. 

Despite testimony as to the Children’s comfort in their foster home and 

the positive relationship and bond between the Children and their foster 

mother and foster family, testimony also revealed a bond with Mother. N.T., 

3/10/17, at 14, 17-18; N.T., 11/14/16, at 30-32. Notably, however, this was 

described to be more of a “friendlier” bond than a parental bond, and not a 

beneficial bond. N.T., 11/14/16, at 29-30, 80. Likewise, there was noted a 

lack of inquiry about Mother outside of visitation. Id. at 80. Nevertheless, 

Dominique Bibbs, CUA case manager, testified that the Children were excited 

to see Mother at visits. Id. at 20. Further, Ms. Bibbs confirmed that, during 

visitation, the Children expressed a desire to “go home.”6 Id. at 81. As such, 

she indicated that the Children would be upset if Mother’s parental rights were 

terminated. Id. at 30-31. In addition, child advocate social worker, Jessica 

Spurgeon, testified that L.R.J.P. expressed his desire to return home to Mother 

and Father, although “okay” remaining in the foster home. N.T., 3/10/17, at 

____________________________________________

6 According to Ms. Bibbs, “home” was not identified in relation to Mother and 

Father, but location. N.T., 11/14/16, at 81.
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17. Moreover, she stated that, in May 2016, J.M.C.P. indicated, “I want to be 

where I’m supposed to be.” Id. 

Accordingly, we are constrained to vacate the orders involuntarily 

terminating Mother’s parental rights to the Children without prejudice and 

remand for further proceedings. See T.M.L.M., 184 A.3d at 587-91; see also 

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); 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 

attorney had been appointed to represent children and whether attorney had 

ascertained children’s legal interests prior to hearing).

On remand, the Family Court shall appoint separate legal-interests 

counsel for the Children. Such counsel must attempt to ascertain the 

Children’s preferred outcome as to Mother by directly interviewing the

Children, following their direction to the extent possible, and advocating in a 

manner that comports with the Children’s legal interests. Counsel should 

discern from the Children whether they prefer adoption by their foster parents 

if the adoptive family does not support continued contact with Mother. If the 

Children are unable to express clearly their position as to Mother or direct 

counsel’s representation to any extent, counsel shall notify the court. We 
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observe that the Children may have differing preferred outcomes as to Mother, 

in which case counsel shall inform the court, and the court shall appoint 

additional legal-interests counsel, so that each child is represented separately,

and conduct further proceedings consistent with this memorandum.

Once a preferred outcome is identified, counsel shall notify the Family 

Court whether termination of Mother’s parental rights is consistent with the

Children’s legal interests. If the Children’s preferred outcome is consistent 

with the result of the prior termination proceedings, the court shall re-enter 

its May 2, 2017, orders as to Mother. If the preferred outcome is in conflict 

with the prior proceeding, the court shall conduct a new termination hearing 

as to Mother only to provide the Children’s legal counsel an opportunity to 

advocate on behalf of the Children’s legal interests. See T.M.L.M., 184 A.3d 

at 591 (ordering that 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). 

Orders vacated without prejudice to permit the Family Court to re-enter 

the original orders if a new termination hearing is not required. Case 

remanded for proceedings consistent with this memorandum. Jurisdiction 

relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/18