J-S57016-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.M.R. A/K/A 

A.R., A MINOR

APPEAL OF: D.R., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1367 EDA 2018

Appeal from the Decree April 10, 2018

in the Court of Common Pleas of Philadelphia County 

Family Court at Nos.: CP-51-AP-0000010-2018 

FID: 51-FN-002198-2015

BEFORE: PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 09, 2018

D.R. (“Father”) appeals from the decree of the Court of Common Pleas 

of Philadelphia County, entered April 10, 2018, which granted the petition of 

the Department of Human Services (“DHS”) and involuntarily terminated his 

parental rights to his daughter, A.M.R. (“Child”) (born in May 2008), pursuant 

the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), and (b).

1

 We are 

constrained to vacate and remand for further proceedings consistent with this 

memorandum.

We take the following facts and procedural history from the trial court’s 

opinion, which in turn is supported by the record. (See Trial Court Opinion, 

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1 The trial court confirmed the consent to termination of the parental rights of 

Child’s natural mother, E.C. (“Mother”), in an order entered that same day. 

Mother is not a party to the instant appeal and has not filed a separate appeal.
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6/06/18, at 1-4; see also N.T. Hearing, 4/10/18, at 1-50). In October 2015, 

DHS received a report alleging that Child had been the victim of sexual abuse 

by Mother’s ex-paramour and that Mother had stopped sending Child to school 

for fear that Child would disclose the abuse to staff. The report was 

determined to be valid, and Child was removed from Mother’s home. 

Following a shelter care hearing, DHS was granted temporary legal custody of 

Child. At that time, Father was not involved in the care of Child. Child was 

placed in foster care and DHS subsequently filed a dependency petition. Child 

was adjudicated dependent on October 26, 2015, with full legal custody 

granted to DHS. Father did not attend the dependency hearing.

The court conducted permanency review hearings between November 

2015 and January 2018. Father met with Community Umbrella Agency 

(“CUA”) representatives, where permanency goals were identified for him at 

a single case plan (“SCP”) objective meeting. These goals were to cooperate 

with supervised visitation; attend Achieving Reunification Center (“ARC”) for 

parenting classes; and obtain appropriate housing. In early 2016, Child, who 

had been previously placed with paternal grandmother, was removed from the 

home after alleging that grandmother hit her. Child was placed in a preadoptive foster home, where she has resided since. As of September 2017, 

Father was not compliant with his SCP objectives. He visited Child only twice,

in July 2017, had not attended ARC, and had not obtained appropriate 

housing. 
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On January 8, 2018, DHS filed a petition seeking to involuntarily 

terminate Father’s parental rights and change Child’s permanency goal to 

adoption. On April 10, 2018, the court held a hearing on the termination and 

goal change petitions. Child was represented by Melanie Silverstein, Esquire, 

as legal counsel and Kathleen Taylor, Esquire, as guardian ad litem. (See

N.T. Hearing, at 6). Neither Attorney Silverstein nor Attorney Taylor 

presented witnesses or participated in cross examination. (See id. at 31, 41-

42). Neither attorney made argument regarding Child’s best interests or legal 

interests, and they joined DHS’s argument. (See id. at 43). Father was 

represented by counsel and testified on his own behalf. (See id. at 5, 37-41). 

Cynthia Marcano, the CUA case manager, testified for DHS, and opined that it 

was in Child’s best interests for Father’s parental rights to be terminated and 

her goal changed to adoption. (See id. at 30-31; see also id. at 19-36). 

Following the conclusion of DHS’s case in chief, the court granted the petition 

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b), and entered a decree 

terminating Father’s parental rights. 

Father timely filed a notice of appeal and a concise statement of errors 

complained of on appeal from the termination docket. See Pa.R.A.P. 

1925(a)(2)(i). The trial court entered its opinion on June 6, 2018. See 

Pa.R.A.P. 1925(a)(2)(ii).

Father now raises the following issues for our review.

1. Whether the trial court erred in terminating [Father’s] parental 

rights under 23 Pa.C.S.A. [§] 2511(a)(1), the evidence having 

been insufficient to establish [Father] had evidenced a settled 
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purpose of relinquishing his parental claim, or having refused or 

failed to perform parental duties[?]

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

had refused or failed to perform parental duties, caused Child to 

be without essential parental care, that conditions having led to 

placement had continued to exist, or finally that any of the above 

could not have been remedied[?]

3. Whether the evidence was sufficient to establish that 

termination of parental rights would best serve the needs and 

welfare of the minor Child, under 23 Pa.C.S.[A. §] 2511(b)[?]

(Father’s Brief, at 5) (unnecessary capitalization omitted).

Prior to addressing the merits of Father’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, 413 (Pa. Super. 2018). Our Supreme Court, in In re 

Adoption of L.B.M., 161 A.3d 172 (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 In re L.B.M., supra at 183. 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, 587-91 (Pa. Super. 2018). 

Here, the trial court appointed legal counsel for Child, Attorney 

Silverstein. Attorney Silverstein was present at the hearing, but did not 

present evidence, cross-examine witnesses, or argue Child’s legal 

preferences. (See N.T. Hearing, 4/10/18, at 31, 41-43). The record is silent 
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as to whether Attorney Silverstein ascertained Child’s legal preferences during 

the pendency of the appeal. While Child’s guardian ad litem has filed a brief 

before this Court arguing it is in Child’s best interests to terminate Father’s 

rights, Attorney Silverstein has not filed a brief or joined the brief of another 

party. See In re T.M.L.M., supra at 590 (noting that counsel’s duty to 

represent a child does not stop at the conclusion of the termination of parental 

rights hearing). There is nothing in the record to indicate that Child, who was 

nine years and ten months old at the time of the hearing, could not 

communicate her preferred outcome. See id. (explaining that six year old 

child likely has feelings one way or another about parent and his permanency). 

Further, there is nothing in the record that clearly indicates Child’s 

preferences, besides the circumstantial evidence that Father has been largely 

uninvolved in her life and that she appears happy in her pre-adoptive foster 

home.

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

remand for further proceedings. See id. at 587-91 (vacating and remanding 

for further proceedings where attorney admitted she did not interview sixyear-old child to ascertain child’s preferences); see also In re Adoption of 

D.M.C., --- A.3d ---, 2018 WL 3341686 at **5-6 (Pa. Super. filed July 9, 

2018) (vacating and remanding where 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); In re Adoption of 

M.D.Q., --- A.3d ---, 2018 WL 3322744 at **3-5 (Pa. Super. filed July 6, 
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2018) (vacating and remanding where record does not indicate that counsel 

attempted to ascertain children’s preferences and record does not reflect 

children’s legal interests).

Accordingly, we remand to the trial court to re-appoint legal counsel and 

a guardian ad litem for Child, and direct counsel to “effective[ly] represent[]” 

Child by “ascertain[ing] [Child’s] position and advocating in a manner 

designed to effectuate that position.” In re T.M.L.M., supra at 590. Once 

counsel identifies Child’s preferred outcome, counsel shall notify the trial court 

whether termination of Father’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 April 10, 2018 

termination decree as to Father. If the preferred outcome is in conflict with 

the prior proceeding, the trial court shall conduct a new termination/goal 

change hearing as to Father only, to provide Child’s legal counsel an 

opportunity to advocate on behalf of Child’s legal interests. See id. at 591 

(ordering that trial court shall conduct a new hearing only if it serves the 

substantive purpose of providing child with opportunity to advance his legal 

interests through new counsel). 

Decree vacated as to Father without prejudice to permit the trial court 

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

Case remanded for proceedings consistent with this memorandum. 

Jurisdiction relinquished.

Judge Panella concurs in the result.
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Judge Strassburger files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/9/18