J

- S57016

- 18

____________________________________ * 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 : : : : : : : : : 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 0 9 , 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 (“D HS”) 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 wit h 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,

_________________ __________ ______ ____ _______ 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 in stant appeal and has not filed a separate appeal.J

- S57016

- 18

- 2

-

6/ 0 6/18, at 1

- 4; see also N.T. Hearing, 4/10/18, at 1

- 50). In October 2015, DHS rece ived 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 r emoved 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 p ermanency review hearings between November 2015 and January 2018. Father met with Community U mbrella 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 c lasses ; 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 pre

adoptive foster home, where she has resid ed 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.J

- S57016

- 18

- 3

-

On January 8, 2018, DHS filed a petition seeking to involuntari ly terminate Father’s parental rights and change Child’s permanency goal to adoption. O n 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 Ka thleen 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 i d. at 5 , 37

- 41 )

. Cynthia Marcano, the CUA ca se 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 i d. at 1 9

- 36 )

. Following the conclusion of DHS’ s case in chief, th e 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 terminat ion 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 settledJ

- S57016

- 18

- 4

-

purpose of relinquishing his parental claim, or having refused or fa iled to perform parental duties[?] 2. Whether the evidence was suffi cient 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 reme died[?] 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, 41 3 (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 preferen ces. ( See N.T. Hearing, 4/10/18, at 31, 41

- 43)

. The record is silentJ

- S57016

- 18

- 5

-

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 arguin g 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 conclus ion 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 ol d 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 six

year - 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,J

- S57016

- 18

- 6

-

2018) (vacating and remanding where reco rd 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 cou nsel 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 identifie s Child’s preferred outcome , counsel shall notify the tr ial 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
termin ation 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 C hild’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 w ithout 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.J

- S57016

- 18

- 7

-

Judge Strassburger files a Dissenting Memorandum. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/9/18