J-S47030-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.F., A MINOR

APPEAL OF: ALLEGHENY COUNTY

OFFICE OF CHILDREN, YOUTH AND

FAMILIES

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 589 WDA 2018

Appeal from the Order Entered April 11, 2018

in the Court of Common Pleas of Allegheny County Orphans’ Court at

No(s): CP-02-AP-0000193-2017

IN THE INTEREST OF: A.A.W. A/K/A

A.A.W., A MINOR

APPEAL OF: ALLEGHENY COUNTY

OFFICE OF CHILDREN, YOUTH AND

FAMILIES

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 590 WDA 2018

Appeal from the Order Entered March 29, 2018

in the Court of Common Pleas of Allegheny County Orphans’ Court at

No(s): CP-02-AP-0000194-2017

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

MINOR

APPEAL OF: ALLEGHENY COUNTY

OFFICE OF CHILDREN, YOUTH AND

FAMILIES

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 591 WDA 2018
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Appeal from the Order Entered March 29, 2018

in the Court of Common Pleas of Allegheny County Orphans’ Court at

No(s): CP-02-AP-0000195-2017

IN THE INTEREST OF: A.A.M., A

MINOR

APPEAL OF: ALLEGHENY COUNTY

OFFICE OF CHILDREN, YOUTH AND

FAMILIES

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 592 WDA 2018

Appeal from the Order March 29, 2018

in the Court of Common Pleas of Allegheny County Orphans’ Court at No(s):

CP-02-AP-0000196-2017

BEFORE: OLSON, MCLAUGHLIN, and STRASSBURGER*, JJ. CONCURRING MEMORANDUM BY STRASSBURGER, J.:

FILED: September 17, 2018

I concur in the result reached by the Majority. I agree with the Majority

that the orphans’ court erred by applying the law incorrectly for the second

factor of the statutory analysis pursuant to 23 Pa.C.S. § 2511(a)(8). Thus, I

further agree that orphans’ court’s order should be vacated, and the case

remanded to the orphans’ court to conduct a new analysis.

Where I part ways the Majority is in its conclusion that the orphans’

court’s failure “to address the needs and welfare of the Children ... constitutes

legal error.” Majority Memorandum, at 13. ____________________________________________ * Retired Senior Judge assigned to the Superior Court.
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In order to terminate parental rights pursuant to 23 Pa.C.S.[]

§ 2511(a)(8), the following factors must be demonstrated: (1)

The child has been removed from parental care for 12 months or

more from the date of removal; (2) the conditions which led to

the removal or placement of the child continue to exist; and (3)

termination of parental rights would best serve the needs and

welfare of the child.

In re Adoption of M.E.P., 825 A.2d 1266, 1275–76 (Pa. Super. 2003).

Here, the orphans’ court found that OCYF failed to satisfy the second

factor. It is well-settled that if the orphans’ court concludes that OCYF has

failed to satisfy any one of the three factors, then the orphans’ court must

deny OCYF’s petition. Thus, once the orphans’ court concluded that OCYF had

not satisfied the second factor, it had no need to analyze the third. Even if

the orphans’ court found that “termination of parental rights would best serve

the needs and welfare of the child,” the orphans’ court would still have had to

deny the petitions. 23 Pa.C.S. § 2511(a)(8). Thus, I disagree with the

Majority that the orphans’ court erred in this respect.

Because we are vacating the orders and remanding the case to the

orphans’ court, I also point out a few areas of concern with respect to the

Children’s representation by counsel at the TPR hearing and on appeal. 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.
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In re Adoption of M.D.Q., __ A.3d __, 2018 WL 3322744, at *2 (Pa. Super.

2018).

Recently, in In re T.S., __ A.3d __, 2018 WL 4001825, at *10 (Pa.

2018), our Supreme Court offered the following.

[D]uring 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. ...

[M]oreover, 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.

Id. at *10.

In this case, it appears from the record that KidsVoice represented

Children as guardian ad litem beginning in 2014 and throughout the

dependency proceedings. For reasons not clear from the record, on December

14, 2017, the orphans’ court appointed Office of Conflict Counsel to represent

Children as counsel instead of KidsVoice. Pre-Trial Order, 12/14/2017, at 1.

On January 22, 2018, Attorney Lynne Sherry from the Office of Conflict

Counsel entered her appearance on behalf of A.F. only and represented her at

the TPR hearing.1 The other three children were represented at that hearing

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1 A.F. was seven-and-a-half years old at the time of the hearing.
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by a different attorney, Attorney Anastasia Williams; however, it is not clear

when or why she was appointed.2 KidsVoice did not participate in the hearing.

Both attorneys questioned witnesses and participated in the hearing. At

closing, Attorney Williams told the orphans’ court that her “position has to

al[ign] with the agency at this time.” N.T., 3/16/2018, at 157. In addition,

Attorney Sherry represented to the orphans’ court that it is her position that

“grounds do exist for termination of parental rights,” and explained why she

believed the agency met its burden regarding A.F.’s needs and welfare despite

A.F.’s love for Mother. Id. at 158. Attorney Sherry has filed a brief on appeal

consistent with her position expressed at the hearing; Attorney Williams has

not filed a brief or joined in another brief.

The issue here is that it is not clear from the record whether Attorney

Williams and Attorney Sherry were representing Children’s legal interests or

best interests.3It is also unclear why KidsVoice did not continue its

representation as guardian ad litem, either in addition to separate counsel if ____________________________________________

2 These children were ages 5, 3, and almost 2 at the time of the hearing.

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It may be that this is different for each child. For example, if the youngest

two children were too young to express a preferred outcome, which is likely

due to their ages, best interests representation is both necessary and

appropriate. See T.S., supra. To the extent that Attorney Williams and/or

Attorney Sherry were advocating on behalf of any of Children’s best interests

because there was no conflict between that child’s best and legal interests, it

is curious why the orphans’ court did not have Children’s dependency guardian

ad litem continue the representation of Children. See L.B.M., 161 A.3d at

188 (Baer, J., concurring) (noting that continuity of representation between

the dependency and termination proceedings is desirable for children).
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Children’s best and legal interests diverged or as Children’s sole counsel if

Children’s best and legal interests were the same. Finally, there is no

indication in the record as to why A.F. and the other children had different

attorneys, especially after the court only appointed Office of Conflict Counsel

to represent them.4

It is obvious that the parent is contesting the TPR, but the child’s

position is not self-evident. It is often difficult for this Court to discern whether

the attorney is advocating for a child’s preferred outcome (i.e., legal

interests), the attorney’s opinion as to what is in the child’s best interests, or

some combination of the two. The child has a statutory right to client-directed

counsel who must advocate solely for the child’s preferred outcome regardless

of what the attorney personally believes is in the child’s best interests, unless

there is no conflict between a child’s legal interests and best interests, see

T.S., supra. Thus, it is important that the record is clear as to what position

the attorney is advancing. As this is an ever-changing area of law and this

Court attempts to expedite these cases in order for children to achieve

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4 For example, there is no indication whether the court appointed separate

counsel because of a conflict between Children’s best and legal interests

relating to the TPR, or due to some other reason unrelated to the TPR. While

it is unnecessary to divulge the exact nature of the conflict, it would be helpful

to this Court if a brief explanation were placed on the record. Further, no

order of appointment appears appointing Attorney Williams. Our Supreme

Court has recommended as a best practice that the orphans’ court place an

order on the record formalizing an order of appointment in TPR proceedings.

See T.S., supra (citing L.B.M., 161 A.3d at 188 (Baer, J., dissenting)).
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permanency, I use this opportunity to point out that it is best practice for

attorneys and orphans’ courts to place on the record a brief explanation of

which attorney represents which child, the capacity in which the attorney

represents the child, and whether the attorney is advocating for a child’s

preferred outcome, best interests, or both.5

In addition, “[c]ounsel’s duty to represent a child does not stop at the

conclusion of the termination of parental rights hearing.” In re Adoption of

T.M.L.M., 184 A.3d 585, 590 (Pa. Super. 2018); 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). Thus, it is also best practice for counsel to file

a brief or join a brief on appeal to this Court. Moreover, if a child’s position

differs from the outcome of the termination proceeding, counsel has a duty to

seek relief actively, such as by filing an appeal on behalf of the child. See In

re Adoption of J.L., 769 A.2d 1182, 1185 (Pa. Super. 2001).

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5 For example, when the attorney enters a verbal appearance at the beginning

of the hearing or argues a position at the conclusion of the hearing, the

attorney could state his or her name, the firm or organization for which he or

she works, the child he or she represents, whether the child supports or

opposes the TPR petition or has a position that is more nuanced or incapable

or ascertainment, and whether the position advocated by the attorney is based

upon the client’s preferred outcome or the attorney’s opinion regarding the

child’s best interests.