J-S53003-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Z. N. F., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: H. F., MOTHER

No. 964 EDA 2017

Appeal from the Order Entered February 24, 2017

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): 

CP-51-DP-0002596-2014

CP-51-AP-0000146-2017

IN THE INTEREST OF: Z. E. A. F., A 

MINOR

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: H. F., MOTHER

No. 974 EDA 2017

Appeal from the Order Entered February 24, 2017

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): 

CP-51-AP-0000147-2016

CP-51-DP-0002593-2014

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 09, 2018

H.F. (Mother) appeals from the February 24, 2017 orders that granted 

the petitions filed by the Philadelphia Department of Human Services (DHS) 

to involuntarily terminate Mother’s parental rights to Z.N.F., born in July of 
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2013, and Z.E.A.F., born in May of 2011, (Children) and to change the goal 

for Children to adoption.1 We vacate and remand. 

In its opinion, the trial court set forth the factual and procedural 

history of this case, as follows:

The Children’s family became known to the Department of 

Human Services (“DHS”) on July 6, 2013 through a Child 

Protective Service (“CPS”) report alleging Mother tested positive 

for marijuana when Z.N.F. was born [i]n July [of] 2013. At the 

time, Father[2] did not reside with Mother and Child. In January 

2014[,] DHS learned that Mother had been evicted from her 

home. Thereafter, Mother found new housing but was evicted 

again in March 2014 and Mother and Child began residing at the 

People’s Emergency Center (“PEC”). While at PEC, Child’s finger 

was severed as a result of an accident while he was playing 

unattended. 

On January 22, 2015, the Honorable Jonathan Irvine 

adjudicated the Children dependent. On March 10, 2015[,] the 

Community Umbrella Agency (“CUA”) held a Single Case Plan 

(“SCP”) meeting. The SCP objectives established for Mother 

were (1) to produce negative drug screens; (2) to continue to 

meet with her therapist; (3) to remain in a shelter in order to 

qualify for Blue Print Housing; (4) to comply with the shelter 

rules; (5) to schedule and attend all of the Children’s medical 

appointments; (6) to comply with all ... drug screens; and (7) to 

meet with her CUA Case Manager. 

At a permanency review hearing held on October 22, 2015, 

Mother and Father appeared before Master Alexis Ciccone who 

ordered that the Children remain committed. Mother was 

referred to the Clinical Evaluation Unit (“CEU”) for an evaluation 

and three random drug screens. On January 20, 2016, CEU 

____________________________________________

1 Mother’s two appeals were consolidated sua sponte by order of this Court, 

dated April 3, 2017. 

2 Father is not a party to this appeal. 
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issued a Progress Report for Mother reporting that she did not 

complete a drug and alcohol assessment on October 22, 2015; 

that she failed to attend a re-scheduled appointment on 

November 3, 2015; and that she had no contact with CEU.

A permanency review hearing was held on January 21, 

2016. Mother and Father appeared at this hearing. Mother was 

again referred to the CEU for an assessment and a drug screen. 

On March 21, 2016, the SCP objectives identified for Mother 

remained the same but included an additional term th[at] she 

attend all court hearings. On October 20, 2016, CEU completed

a Progress Report indicating that Mother did not provide 

documentation of her current treatment status and she refused 

to provide a urine sample on July 21, 2016. 

On or about February 7, 2017, DHS filed the underlying 

Petition to Terminate Mother’s Parental Rights to the Children. 

On February 24, 2017, this [c]ourt ruled to terminate Mother’s 

parental rights pursuant to 23 Pa.C.S.[] § 2511(a) (1)[,] (2)[,]

(5) and (8) and that the termination of the Mother's rights was 

in the best interest of the Children pursuant to 23 Pa.C.S.[] § 

2511(b). The [c]ourt ruled that the Children’s goal be changed 

to adoption. Thereafter, Mother filed a Notice of Appeal on 

March 22, 2017.

Trial Court Opinion (TCO), 4/27/17, at 2-4 (citations to the record omitted). 

Following its rendition of the facts and procedural history, quoted 

above, the trial court discussed the testimony presented by the CUA 

representative, who explained Mother’s failure to meet her SCP objectives 

and to complete her random drug screens. The CUA representative also 

testified about Children’s living with a paternal aunt since 2015, who is 

considered to be a pre-adoptive placement. The CUA representative further 

indicated that a goal change to adoption was in Children’s best interest. 

Based upon this testimony and the submission of documentary evidence, the 

court concluded that Mother’s parental rights should be terminated, a 
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decision that would be in Children’s best interest. Id. at 8. The court also 

changed the goal for Children to adoption. 

On appeal, Mother raises the following issues for our review:

A. Whether the trial court erred in involuntarily terminating the 

Mother’s parental rights where it was not supported by clear and 

convincing evidence when the Mother completed a substantial 

portion of her FSP/SCP goals?

B. Whether the trial court erred in involuntarily terminating the 

Mother’s parental rights where ... the bonding evaluation was 

incredible in that the Mother had consistently visited her Children 

and there was a bond between the Mother and Children and the 

termination of parental rights would have a negative effect on 

the developmental, physical and emotional needs of the 

Children?

Mother’s brief at 5 (unnecessary capitalization omitted).3 

Based upon her arguments relating to the above stated issues, 

Mother’s brief contains a request that the termination of her parental rights 

be reversed. In the alternative, Mother asks that “this matter should be 

remanded for appointment of a children’s attorney and a hearing should be 

held on whether the children wish to be adopted at this time.” Id. at 16 

(citing In re: Adoption of L.B.M., 161 A.3d 172 (Pa. 2017)). 

We are aware that Athena Mary Dooley, Esq., has entered her 

appearance in this Court and is identified as the attorney for Children. 

Additionally, Attorney Dooley, who attended the February 24, 2017 hearing 

____________________________________________

3 No issue has been raised relating to the goal change. 
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before the trial court, is identified in the transcript of that hearing as a child 

advocate. In fact, the record contains a copy of an order, dated November 

4, 2014, appointing counsel as a child advocate, yet no name identifying an 

attorney is stated in the order. However, the record also contains a 

dependency court pre-hearing conference report that identifies Attorney 

Dooley as the child advocate. Without more, we are unable to identify 

whether Attorney Dooley is acting in the role of a guardian ad litem (GAL), 

who is appointed to represent Children’s best interests, as an independent 

attorney, who represents Children’s legal interests, or whether Attorney 

Dooley is acting in both capacities simultaneously. 

In In re: D.L.B., 166 A.3d 322 (Pa. Super. 2017), with reliance on the 

L.B.M. case, this Court stated that “23 Pa.C.S.[] § 2313(a) requires the trial 

court to appoint counsel for a child in a termination of parental rights 

(“TPR”) case, and that the failure to do so is structural and can never be 

harmless.” Id. at 329. The D.L.B. case further states: 

As a point of information, Justice Wecht’s opinion in L.B.M.

states that the trial court is required to appoint a separate, 

independent attorney to represent a child’s legal interests even 

when the child’s GAL, who is appointed to represent the child’s 

best interests, is an attorney. Justice Wecht would hold that the 

interests are distinct and require separate representation. While 

Justice Wecht, joined by Justices Donohue and Dougherty, 

sought to so hold, four members of the court, Chief Justice 

Saylor and Justices Baer, Todd, and Mundy disagreed in different 

concurring and dissenting opinions with that part of the lead 

opinion’s holding. Specifically, while the other justices agreed 

that the appointment of counsel for the child is required in all 

TPR cases and that the failure to do so by the trial court is a 

structural error, they did not join that part of Justice Wecht’s 
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opinion which sought to hold that the GAL may never serve as 

counsel for the child. Rather, such separate representation 

would be required only if the child’s best interests and legal 

interests were somehow in conflict.

Id.

We are also aware of a very recent opinion filed by this Court, wherein 

we recognized that “[t]his court must raise the failure to appoint statutorilyrequired counsel for children sua sponte, as children are unable to raise the 

issue on their own behalf due to their minority.” In re Adoption of: 

T.M.L.M., ___ A.3d ___, 2018 PA Super 87, *2 (filed April 13, 2018) (citing 

In re K.J.H., ___ A.3d ___, 2018 PA Super 37 (filed February 20, 2018)). 

In the T.M.L.M. case, this Court stated that,

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 [the 

c]hild wants no contact with [the m]other. [The c]hild may be 

unable to articulate a clear position or have mixed feelings about 

the matter. Furthermore, termination of [the m]other’s rights 

may still be appropriate even if [the c]hild prefers a different 

outcome. However, pursuant to the Supreme Court’s opinion in 

Section I and II-A of L.B.M., 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. L.B.M., 161 A.3d at 174, 180. 

T.M.L.M., at *4. Accordingly, the termination order in T.M.L.M. was 

vacated and the case was remanded for the appointment of counsel to 

represent the child’s legal interests.
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In contrast, the D.L.B. Court found the child’s best interests and legal 

interests were not in conflict and were represented by the attorney 

appointed as the child’s GAL. Here, we are unable to discern what role 

Attorney Dooley performed or even whether Children’s best interests and/or 

legal interests were or were not in accord. A question also arises with 

regard to whether there is conflict between each child’s best and legal 

interests. Accordingly, we are compelled to vacate the termination/goal 

change orders from which Mother appealed and remand this matter so that a 

new hearing may be held to determine the answers to these factual 

questions. Moreover, if a conflict between legal interests and best interests 

is revealed and/or if a conflict exists between each child’s separate interests, 

then the trial court is directed to appoint the necessary attorney(s) to 

protect Children’s interests. Depending upon the determination as to the 

attorney issue, the court shall then ascertain whether a new termination 

hearing must be held with the inclusion of proper representation of the 

interests of Children.

Orders vacated. Cases remanded for further proceedings. Jurisdiction 

relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/9/18