J-S65015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: Q.R.D., A MINOR

APPEAL OF: N.J.D., NATURAL 

FATHER

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1060 MDA 2018

Appeal from the Decree Entered June 8, 2018

In the Court of Common Pleas of Schuylkill County Orphans’ Court at 

No(s): A63-245A-17

BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 24, 2018

Appellant, N.J.D., biological father (“Father”) to Q.R.D. (“Child”),

appeals from the decree entered June 8, 2018, terminating his parental rights 

to Child. After careful consideration, we vacate and remand. 

Child was born in August of 2013 to K.D. (“Mother”) and Father. N.T., 

5/17/18, at 35. Mother and Father were unmarried at the time of Child’s birth 

and lived together until approximately December of 2013, when they 

separated. Id. at 36, 54. The parties subsequently entered into a custody 

agreement in the Carbon County Court of Common Pleas in April of 2014. Id.

at 37-38. The custody order provided Mother with primary custody of Child 

and partial custody to Father. Id. at 38-39. When Mother subsequently 

refused to follow the custody order, Father filed a petition for contempt with 
J-S65015-18

- 2 -

the Carbon County Court of Common Pleas, and Mother was found to be in 

contempt. Id. at 54-55, 67, 73. 

A second custody order was entered in June of 2014, which continued 

to give Mother primary custody and Father partial custody. N.T., 5/17/18, at 

40. In July of 2015, while Child was in Father’s custody, Child suffered burn 

marks. Id. at 14, 42-43. The matter was referred to Children and Youth 

Services, but it was determined there was no need for services. Id. at 42, 

53-54. Thereafter, Mother would not allow Father to have custody of Child 

outside of Mother’s home. Id. at 39. Although Father had successfully filed 

a contempt action against Mother in May of 2014, he chose not to seek another 

contempt finding. Id. at 55, 118. From July of 2015 until May of 2016, 

Father’s visits with Child were sporadic.1 Id. at 43, 76-80. Father saw Child 

on May 5, 2016, the day Father exited rehabilitation services, during a chanceencounter at a local supermarket2 and later that day. Id. at 44, 56, 81. 

There was also evidence provided that Father attempted to see Child on 

Child’s birthday in August of 2016. N.T., 5/17/18, at 12, 45, 57, 83-84.

Father testified that Mother agreed to allow Father to see Child on that date 

and Father waited at Mother’s home until Child and Mother returned. Id. at 

____________________________________________

1 Father testified that during this period, he spent seventy-five days in 

rehabilitation for treatment of depression and drug use. Id. at 79-81.

2 Father testified to seeing Child in the local supermarket earlier in the day, 

N.T., 5/17/18, at 80-81, but Mother did not recall that interaction. Id. at 56-

57.
J-S65015-18

- 3 -

83-84. Mother, however, testified that Father advised her that he was going 

to Mother’s house on that date, and she told him they were not home but that

he could wait until Mother and Child returned home. Id. at 45. While waiting, 

Father stated that Mother’s Father, A.H. (“Maternal Grandfather”), who lives 

with Mother, Child, and B.M.D. (“Stepfather”),

3 started an argument with him, 

so he left before seeing Child. Id. at 12. Father left birthday presents for 

Child. Id. at 12, 16, 45.

Father maintains that he attempted to contact Mother and Maternal 

Grandfather after August of 2016 in an effort to see Child. N.T., 5/17/18, at 

84. Father stated that his calls to Mother would “not go through,” and he 

speculated that Mother blocked his number or changed her number.4 Id. at 

85, 87-88. Father contends that neither Mother nor Maternal Grandfather 

returned his messages. Id. at 85-86. 

In November or December of 2016, Father maintains that he advised 

Maternal Grandfather that he planned to move to Philadelphia, where he had 

accepted a job. N.T., 5/17/18, at 85-86. Father asserts that neither Mother 

nor Maternal Grandfather responded. Id. at 85-87. Father remained in 

____________________________________________

3 Stepfather is married to Mother and at the time of the hearing had lived with 

Mother and Child for three years. N.T., 5/17/18, at 22. 

4 Despite Father’s conjecture that Mother had changed her phone number, at 

trial evidence was presented reflecting that Mother’s number had not changed

since 2014. Id. at 5, 23-24, 44, 46-47. 
J-S65015-18

- 4 -

Philadelphia until September of 2017, when he moved back to Schuylkill 

County because Mother and Stepfather had begun the process to terminate 

Father’s parental rights to Child. Id. at 87-89. Father acknowledged that he 

had not seen Child since May 5, 2016. Id. at 110-111, 116. Despite Mother’s 

efforts to keep Child from Father, Father has not filed any proceedings against 

Mother since the contempt action in 2014. Id. at 118. 

Stepfather filed a petition to involuntarily terminate Father’s parental 

rights on November 21, 2017.5 A hearing on the petition was held on May 17, 

2018. On June 8, 2018, the orphans’ court issued an opinion and final decree 

granting Stepfather’s petition to terminate Father’s parental rights to Child. 

On June 27, 2018, Father filed a notice of appeal and a concise statement of 

errors. 

Before we reach the issues presented by Father on appeal, we address 

sua sponte whether Attorney Constance A. Calabrese’s representation of Child 

____________________________________________

5 Pursuant to 23 Pa.C.S. § 2512(a)(3), a petition to terminate parental rights 

with respect to a child under the age of eighteen years may be filed by “[t]he 

individual having custody or standing in loco parentis to the child and who has 

filed a report of intention to adopt required by section 2531 (relating to report 

of intention to adopt).” In this case, Stepfather has stood in loco parentis to 

Child, and he also filed a report of intention to adopt pursuant to Section 2531. 

Petition for Adoption, 11/21/17, at 1. Thus, Stepfather had standing to file 

the petition at issue. 
J-S65015-18

- 5 -

satisfied the requirements of 23 Pa.C.S. § 2313(a).6 Child has a clear 

statutory right to counsel in contested involuntary termination proceedings:

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. § 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., 161 A.3d 172, 180 (Pa. 2017). As our Supreme Court 

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

interests. Id. at 174. 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.

Recently, in T.S., 192 A.3d 1080 (Pa. 2018), our Supreme Court clarified

a child’s statutory right to the appointment of legal counsel. That decision 

examined L.B.M. and reiterated that children have a clear statutory right to 

mandatory appointment of counsel to represent their legal interests in 

contested termination of parental rights proceedings. In re T.S., 192 A.3d at 

____________________________________________

6 This 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).
J-S65015-18

- 6 -

1082. However, the T.S. Court also held that, “where a child’s legal and best 

interests do not diverge in a termination proceeding, an attorney-[guardian 

ad litem (“GAL”)] representing the child’s best interests can also fulfill the role 

of the attorney appointed . . . to represent the child’s legal interests.” In re

T.S., 192 A.3d at 1088. The T.S. Court also noted that the majority view in 

L.B.M. “indicated that, where a child is too young to express a preference, it 

would be appropriate for the GAL to represent the child’s best and legal 

interests simultaneously.” Id. The T.S. Court ultimately concluded that when 

a child is too young or non-verbal, the child’s wishes cannot be ascertained, 

and therefore there is no duty to advise the court. See Id. at 1090 (“As a 

matter of sound logic, there can be no conflict between an attorney’s duty to 

advance a subjective preference on the child’s part which is incapable of 

ascertainment, and an attorney’s concurrent obligation to advocate for the 

child’s best interests as she understands them to be.”). Ultimately, the T.S.

Court reaffirmed:

certain principles agreed upon by a majority of Justices in L.B.M., 

namely, that during contested termination-of-parental-rights 

proceedings, where there is no conflict between a child’s legal and 

best interests, an attorney-guardian ad litem representing the 

child’s best interests can also represent the child’s legal interests. 

As illustrated by the present dispute, moreover, if the preferred 

outcome of a child is incapable of ascertainment because the child 

is very young and pre-verbal, there can be no conflict between the 

child’s legal interests and his or her best interests; as such, the 

mandate of Section 2313(a) of the Adoption Act that counsel be 

appointed “to represent the child,” 23 Pa.C.S. § 2313(a), is

satisfied where the court has appointed an attorney-guardian ad 

litem who represents the child’s best interests during such 

proceedings.
J-S65015-18

- 7 -

In re T.S., 192 A.3d at 1092-1093. 

Finally, in In re Adoption of T.M.L.M., 184 A.3d 585 (Pa. Super. 

2018), this Court examined the requirements necessary for counsel to provide 

adequate representation of a child’s legal interests as follows:

At the time of the hearings, [T.M.L.M.] was just shy of six 

years old. While [T.M.L.M.] may not have been old enough to 

participate actively in [court appointed counsel’s] representation 

of him, it is not unlikely that [T.M.L.M.] 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 

[T.M.L.M.’s] preferred outcome in this case is synonymous with 

his best interests. It may be that [T.M.L.M.] wants no contact 

with Mother. [T.M.L.M.] 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 

[T.M.L.M.] prefers a different outcome.

Id., at 590. Indeed, as noted by our Supreme Court in T.S., “Pennsylvania’s 

Rules of Professional Conduct refer to children as young as five or six year of 

age... having opinions which are entitled to weight in legal proceedings 

concerning their custody.” In re T.S., 192 A.3d at 1089, n.17 (internal 

quotation marks and citation omitted).

Here, the certified record reflects the following. The orphans’ court 

appointed Attorney Calabrese as “counsel” for Child on January 19, 2018. 

Order, 1/19/18, at 1. In a letter to the court, Attorney Calabrese thanked the 

court for appointing her as “counsel” for Child in this matter. Letter, 2/1/18, 

at 1. We are unable to locate any order in the certified record appointing her 
J-S65015-18

- 8 -

as a GAL. Nonetheless, Attorney Calabrese was identified as GAL for Child at 

the hearing on the involuntary termination of parental rights petition filed by 

Stepfather. N.T., 5/17/18, at 1. At the hearing, her cross-examination of the 

witnesses was directed toward the best interests of Child. Id. at 1-128. 

However, we are unable to locate in the record any indication of Child’s 

preferred outcome or that Attorney Calabrese was unable to ascertain Child’s 

preferred outcome due to Child’s age, development, or other reason.7

Compounding matters is the fact that Attorney Calabrese’s appointment

was vacated on August 1, 2018, after this matter was on appeal, and the 

orphans’ court appointed Attorney Shelby G. Hostetter as “counsel” for Child. 

Order, 8/1/18, at 1. In a letter entered September 11, 2018, Attorney 

Hostetter indicated that she had been appointed as GAL to Child in the matter 

pursuant to the August, 2018 order of court, but did not serve as GAL in the 

orphans’ court proceedings. Letter, 9/11/18, at 1. Attorney Hostetter advised 

that she would be relying on the orphans’ court opinion and corresponding 

order issued June 8, 2018, and “[a]s such, I have no alternative or 

inconsistent precedent to provide and will not be submitting a brief.” Id. 

____________________________________________

7 We note that the parties in T.S. agreed, due to the children’s very young 

age (two and three years old), that they “cannot have formed a subjective, 

articulable preference to be advanced by counsel during the termination 

proceedings,” and that our Supreme Court found this to be entirely consistent 

with the record. In re T.S., 192 A.3d at 1089. There is no indication of such 

an agreement between the parties in the record before us in this case, and 

Child was four and one-half years old at the time of the hearing.
J-S65015-18

- 9 -

Based upon our review of the record, we have no basis upon which to 

conclude that Attorney Calabrese effectively represented Child’s legal interests 

in this matter. Like one of the children in L.B.M., Child was four years old at 

the time of the termination hearing. Although Child had a previous 

relationship with Father, the record does not reflect whether he was 

interviewed regarding his preference, whether he had a preference, or 

whether his preference could be ascertained. 

While we do not wish to prolong the uncertainty of Child’s future, we are 

constrained to vacate the order terminating Father’s parental rights and 

remand for proceedings consistent with this memorandum. Upon remand, the 

orphans’ court shall determine whether a conflict existed between Child’s best 

interests and legal interests, if ascertainable. If Child’s best and legal interests

are found not to conflict, or if his legal interests are found to be 

unascertainable, the orphans’ court may re-enter its original order. However, 

if a conflict is found to exist, the court shall reappoint legal counsel for the 

child, as well as a separate GAL, and conduct a new hearing in order to serve 

the substantive purpose of providing Child with an opportunity to advance his 

legal interests through his new counsel. In re adoption of N.A.G., 471 A.2d 

871, 875 (Pa. Super. 1984).

Decree vacated without prejudice to permit the orphans’ court to reenter the original order if a new hearing is not held. Case remanded for 

proceedings consistent with this memorandum. Jurisdiction relinquished.
J-S65015-18

- 10 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/24/2018