Opinion
2819 EDA 2022 2820 EDA 2022 J-A12021-23
07-18-2023
IN THE INTEREST OF: S.Y., A MINOR APPEAL OF: T.Y., MOTHER IN THE INTEREST OF: S.D.Y.T., A MINOR APPEAL OF: T.Y., MOTHER
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
Appeal from the Order Entered September 26, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000992-2020, CP-51-AP-0000247-2022.
Joseph D. Seletyn, Esq.
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM
NICHOLS, J.
T.Y. (Mother) appeals from the order terminating her parental rights to S.Y. (Child), born in September of 2020, and changing Child's permanency goal to adoption. After careful review, we vacate the trial court's order and remand for further proceedings consistent with this memorandum.
The trial court summarized the underlying history of this matter as follows:
DHS first became aware of this family on April 8, 2019, when it received a General Protective Services (GPS) report indicating concerns for the safety of Child's older sibling and Mother's mental health issues. The report stated that Mother had been hospitalized for mental health treatment at Fairmount Behavioral Health system for exhibiting erratic behavior such as yelling in the streets and threating family members with knives. The report further stated that Mother tested positive for marijuana, cocaine, oxycodone, and benzodiazepines in the past. The report was determined to be valid and Child's sibling was committed to DHS. On May 1, 2020, the Philadelphia Police Department received a GPS report that on April 30, 2020, Mother was located on a highway attempting to sell Child's sibling for drugs, hitting herself, talking to people who were not present, throwing food and her mobile phone, and attempting to walk into traffic. Mother failed to provide a urine sample for toxicology. The report was determined to be valid.
On September 4, 2020, the day following the birth of Child, DHS received a GPS report which alleged Mother tested positive for Marijuana, Oxycodone, Fentanyl, and Tramadol during Child's birth. Child tested positive for Marijuana and Oxycodone. Child was born at thirty-three weeks gestation, weighing three pounds and eight ounces. Child was admitted to the Neonatal Intensive Care Unit. Mother admitted to using Marijuana, Oxycontin, and Tramadol but denied using Fentanyl. Mother was diagnosed with Bi-Polar Disorder, Schizoaffective Disorder, Major Depressive Disorder, Cannabis and Opiate use, and showed severe psychotic symptoms. Mother was not receiving drug or alcohol treatment. Mother has a history of unstable housing and was residing in a hotel. On September 18, 2020, DHS obtained an Order of
Protective Custody (OPC) for Child and placed Child into the pre-adoptive home of Tamekia McFadden. The adjudicatory hearing was held on November 17, 2020, whereby this court adjudicated Child dependent based on present inability of parents to provide proper parental care and control, and Child was fully committed to DHS.Trial Ct. Op., 1/13/23, at 1-2.
The record reflects that the trial court initially appointed Claire Leotta, Esq. to act as Child's guardian ad litem (GAL). See Recommendation for Shelter Care, 9/21/20, at 2. On August 30, 2022, the trial court appointed Irene Julie Levy, Esq. to serve as Child's GAL. See Letter of Appointment, 8/30/22. There is no indication that the trial court appointed separate legal counsel on Child's behalf.
On April 13, 2022, DHS filed a petition to terminate Mother's parental rights to Child and change Child's permanency goal to adoption. The trial court conducted a hearing on September 26, 2022. At that time, DHS presented testimony establishing that Mother's reunification goals had remained the same throughout the life of the case and that Mother had failed to make any progress on those goals. See N.T. Hr'g, 9/26/22, at 28.
With respect to the testimony regarding Child's bond with Mother, the trial court explained:
Mother [] testified that Child called [Tameika McFadden (Foster Mother)] her mother and she had to tell Child who she is in relation to her. She also stated that while visiting with Child they talk and play and that Child called her "mom" twice. Mother admitted that Child does not know her "like that" but believes Child is bonded with her. . . . Mother testified that she did not want her rights terminated.
[Community Umbrella Agency (CUA) case manager supervisor Alicia] Lomax testified about the relationship and lack of parental bond Child and Mother have. She stated that Child and Mother do not share a parental bond and Child does not look to Mother as her caregiver. She further testified that Child does not have a close relationship with Mother nor does Child seek care or comfort from Mother. [CUA case manager Amira] Drayton, who was the visitation coach on this case for about five months, physically observed Mother's interaction with Child. While Ms. Drayton is uncertain of the exact number of visits she observed, she testified that there was no bond between Mother and Child. Ms. Lomax
also testified about the relationship and bond that the Child shares with her pre- adoptive family. Child is two years old and has resided in this home for her entire life. Ms. Lomax testified that for six months she personally completed monthly home visits [with Foster Mother] and witnessed interactions between Child and [Foster Mother]. She stated that she last saw Child in the home of [Foster Mother] in May of 2022. She testified that Child has a close relationship with her Foster Mother . . . and calls her "mom." She further stated that [Foster Mother] meets Child's daily emotional and medical needs, and that Child looks to [Foster Mother] for care and comfort. She stated that [Foster Mother] provides Child with safety and stability as Child has been in her current placement since birth. Additionally, Ms. Lomax testified that [] Child would not suffer any harm from terminating Mother's [] parental rights and that she believes it is in the best interest of Child to change the goal to adoption.Trial Ct. Op. at 5-6.
At the conclusion of the hearing, the trial court entered a decree terminating Mother's parental rights and changing Child's permanency goal to adoption pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8) and finding that termination of Mother's parental rights best served Child's developmental, physical, and emotional needs and welfare pursuant to 23 Pa.C.S. § 2511(b).
Mother subsequently filed a timely notice of appeal. Both Mother and the trial court complied with Pa.R.A.P. 1925.
On appeal, Mother raises the following issue for review:
Whether the trial court erred by finding, under 23 Pa.C.S. § 2511(b), that termination of Mother's parental rights best serves the [Child's] developmental, physical and emotional needs and welfare.Mother's Brief at 4 (some formatting altered).
We note that Mother did not raise any claims concerning the basis for termination under 23 Pa.C.S. § 2511(a) in her Rule 1925(a)(2) statement nor does she raise those issues in her brief.
Before addressing Mother's claim, we must review whether the trial court appointed legal counsel to represent Child for the termination proceedings pursuant to 23 Pa.C.S. § 2313(a). See In re Adoption of K.M.G., 240 A.3d 1218, 1235 (Pa. 2020). Our Supreme Court has interpreted Section 2313(a) "as requiring 'that the common pleas court appoint an attorney to represent the child's legal interest, i.e. the child's preferred outcome.'" Id. (citation omitted). Additionally, the failure to appoint a "'separate attorney to represent the child's legal interests constitutes structural error, meaning it is not subject to a harmless-error analysis.'" Id. (citations omitted).
It is well settled that "a single attorney cannot represent a child's best interests and legal interests if those interests conflict." Id. at 1236 (citation omitted). As such, our Supreme Court has held that before appointing an individual to serve as both guardian ad litem (GAL) and legal counsel for a child, the trial court "must determine whether counsel can represent the dual interests . . ." Id. Further, where the trial court appoints one attorney "to represent both the child's best interests and legal interests, appellate courts should review sua sponte whether the [trial] court made a determination that those interests did not conflict." Id. at 1235.
Here, the record reflects that the trial court appointed Attorney Levy as Child's GAL in August of 2022. See Trial Ct. Order, 8/30/22. The trial court did not appoint separate counsel to represent Child's legal interests. In the absence of a conflict between Child's best interests and legal interests, Attorney Levy could have acted in a dual capacity on Child's behalf. However, there is no indication that the trial court made any determination as to whether there was a conflict between Child's legal interests and best interests. See K.M.G., 240 A.3d at 1236. For these reasons, we are constrained to vacate the involuntary termination decree and remand for further proceedings. See id.; see also Interest of A.J.R.O., 270 A.3d 563, 570-71 (Pa. Super. 2022) (reiterating that "appellate review of this question does not involve second- guessing whether GAL/[legal c]ounsel in fact had a conflict but solely whether the [trial] court made the determination in the first instance" (citation omitted)).
We recognize that Child was only two years old at the time of the termination hearing. However, the trial court did not determine, nor did counsel indicate on the record, whether Child was too young to articulate a preference as to the outcome of the proceedings, such that no conflict could exist. See In re T.S., 192 A.3d 1080 (Pa. 2018). Further, although we acknowledge that remand will result in a delay, we are not in a position to make this determination on the trial court's behalf. See A.J.R.O., 270 A.3d at 570-71.
On remand, within thirty days of the date the record is remitted, we direct the trial court to fulfill its Section 2313(a) duty as articulated in K.M.G. and determine whether Attorney Levy may represent both the best interests and legal interests of Child. If the trial court determines that no conflict exists between Child's dual interests, then the court shall re-enter the termination order as to Mother. If the trial court determines that there is a conflict between Child's best interests and legal interests, then the court shall appoint separate legal counsel for Child and conduct a new termination hearing at which time Child's legal counsel can advocate on behalf of Child's legal interests. See K.M.G., 240 A.3d at 1235.
Order vacated. Case remanded with instructions. Jurisdiction relinquished.
Judge McLaughlin joins the memorandum.
Judge Olson files a dissenting memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
OLSON, J.
The learned Majority vacates the trial court's order terminating the parental rights of T.Y. ("Mother") and changing the permanency goal of S.Y. ("Child") to adoption and remands this case to the trial court to determine whether Attorney Irene Levy may represent both the best interests and the legal interests of Child. As I believe that remand is unnecessary and that termination of the parental rights of Mother was appropriate, I would affirm the trial court. Accordingly, I must respectfully dissent.
As articulated more fully by the Majority, Child was born in September 2020 at 33 weeks of gestation weighing three pounds and eight ounces. Upon Child's birth, she tested positive for marijuana and oxycodone. Mother tested positive for various drugs and was diagnosed with various mental illnesses. Mother had a history of unstable housing and was living in a hotel at the time of Child's birth. On September 18, 2020, the Philadelphia Department of Human Services ("DHS") obtained a protective custody order and placed Child in a pre-adoptive home with T.M. Child has been living with T.M. since her birth in September 2020.
On September 21, 2020, the trial court appointed Attorney Claire Leotta to serve as Child's guardian ad litem ("GAL"). On November 17, 2020, Child was adjudicated dependent and placed in the care of DHS.
On April 13, 2022, DHS filed a petition to terminate Mother's parental rights to Child and to change Child's permanency goal to adoption. On August 30, 2022, Attorney Levy was appointed as Child's GAL. On September 26, 2022, a hearing was held on DHS's petition following which the trial court entered an order terminating Mother's parental rights and changing Child's permanency goal to adoption. Mother filed this timely appeal raising only one issue: whether termination of Mother's parental rights best serves Child's developmental, physical and emotional needs and welfare as required by 23 Pa.C.S.A. § 2511(b). Appellant's Brief at 4.
The Majority does not address the merits of Mother's claim. Instead, the Majority notes that, although the trial court appointed a GAL for Child, the trial court failed to appoint legal counsel. Majority at *6. Relying on In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020), the Majority finds that the trial court erred in failing to ascertain whether Attorney Levy can represent both the best interests and the legal interests of Child. Hence, the Majority vacates the trial court's order and remands for the trial court to make an express determination as to whether there is a conflict between Child's legal interests and best interests and to appoint separate legal counsel if such a conflict is found to exist. Majority at **5-6.
Although my colleagues acknowledge that Child was only two years old at the time of the termination hearing, they find that the failure to have an express determination by the trial court that Child was too young to articulate a preference was fatal. Id. at *6 n.3. I disagree with this conclusion.
In In re: T.S., 192 A.3d 1080 (Pa. 2018), the parental rights of a mother were terminated as to her two children. The children were ages two and three at the time of the termination proceedings. The trial court appointed a GAL to represent the children but did not appoint separate legal counsel. On appeal, appellant argued, inter alia, that the children should have been represented by appointed counsel separate from the GAL. In framing the issue, the Supreme Court noted that the parties agreed that the young ages of the children prevented them from forming "a subjective, articulable preference to be advanced by counsel during the termination proceedings." Id. at 1089. Thus, "[t]he question [] becomes whether the requirement of [23 Pa.C.S.A. § 2313(a)], that counsel be appointed to 'represent the child' in a contested [termination of parental rights] proceeding, can be deemed to have been fulfilled by an attorney-GAL who has already been appointed and is present in those proceedings, advocating for the child's best interests." Id. at 1089. In deciding this issue, the High Court looked at Section 6311 of the Juvenile Act for guidance. The Court noted that this section,
initially states that the [GAL] is to "represent the legal interests and the best interests of the child." 42 Pa.C.S.A. § 6311(a). It then specifies that the [GAL] must "[a]dvise the court of the child's wishes to the extent that they can be ascertained and present to the court whatever evidence exists to support the child's wishes." 42 Pa.C.S.A. § 6311(b)(9). By straightforward implication, if the wishes of the child cannot be ascertained, the GAL has no duty to "advise the court" of such wishes. For purposes of the proceeding, such wishes do not exist.Id. at 1089-1090 (emphasis in original, footnote omitted). The Court concluded that "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." Id. at 1092. Hence, the statutory mandate under 23 Pa.C.S.A. § 2313(a) that counsel be appointed to represent the child is satisfied where the court has appointed an attorney-GAL who represents the child's best interests during the termination proceedings. Id. at 1092-1093; see also In re M.M.R., 287 A.3d 894 (Pa. Super. 2022) (non-precedential decision) (GAL can represent both legal and best interests of four-year-old child in accordance with In re: T.S.); In re D.F., 220 A.3d 679 (Pa. Super. 2019) (non-precedential decision) (same involving three and one-half year-old child).
Pursuant to § 65.37(B) of the Superior Court Operating Procedures, non-precedential memorandum decisions of the Court filed after May 1, 2019 may be cited for their persuasive value. See also Pa.R.A.P. 126(b).
In this case, Child had just turned two years-of-age at the time of the termination proceedings. In her brief filed with this Court, Attorney Levy stated that she met virtually with Child and T.M days before the termination hearing. GAL's Brief at 13. T.M. informed Attorney Levy that Child had just started to speak. Id. Attorney Levy observed during this session that Child was too young to understand termination and adoption. Id. In light of Child's pre-verbal age and inability to articulate any preference, I believe that, in accordance with our High Court's holding in In re: T.S., there can be no conflict between Child's legal interests and her best interests. Accordingly, there is no need to remand this case and further delay its final adjudication.
I note that Attorney Levy was present at and participated in the termination proceedings and joined in DHS's recommendations that Mother's parental rights be terminated and that the permanency goal be changed to adoption. Notes of Testimony, 9/6/26, at 86. Attorney Levy also filed a brief with this Court setting forth her arguments in support of the trial court's order.
Instead, I believe that there is no merit to Mother's claim on appeal. As previously noted, Mother's only issue argued on appeal is whether the trial court erred in finding that there is no bond between Mother and Child and that termination best serves the developmental, physical and emotional needs and welfare of Child as required by 23 Pa.C.S.A. § 2511(b).
In addressing the bond between Mother and Child, the trial court stated:
There was compelling testimony that [] Child would not suffer harm if Mother's parental rights were terminated and that Child was significantly bonded with her foster mother [T.M.] who she has lived with since birth. Mother testified that Child called T.M. her mother and that Child does not really know her. However, Mother believes Child is bonded to her, but she failed to offer any evidence establishing the existence of a parent-child bond. Mother has never contacted [Community Umbrella Agency] for updates on Child or provided financial support for Child. Additionally, the testimony demonstrated that Child's foster mother meets all of her medical and emotional needs. In determining that termination would best serve the needs and welfare of [] Child, [the trial c]ourt considered that Mother has not been able to meet [] Child's emotional, physical, and developmental needs for over two years prior to the termination hearing.Trial Court Opinion, 1/13/23, at 15-16 (citations omitted). The record supports the trial court's findings thus warranting affirmance. In re Adoption of T.M.F., 573 A.2d 1035, 1044 (Pa. Super. 1990) (appellate review of a termination order is limited to whether the trial court's order is supported by competent evidence; unless the trial court has abused its discretion or committed an error of law, the order must stand); see In the Interest of K.T., __ A.3d __, 2023 WL 4092986 (Pa. 2023) (determination of a child's particular developmental, physical, and emotional needs and welfare must be made on a case-by-case basis and include intangibles such as love, comfort, security and stability; court must also consider whether child is in a pre-adoptive home and has a bond with foster parent).
As I believe that remand is unwarranted and that the trial court properly terminated Mother's parental rights to Child, I respectfully dissent.