In the Interest Of: C.J.L., Appeal of: R.H. (dissenting memorandum)
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J-A18027-18 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 IN THE INTEREST OF: C.J.L. A/K/A C.L., A MINOR APPEAL OF: R.H., MOTHER : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 168 EDA 2018 Appeal from the Decree December 7, 2017 in the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000976-2016, CP-51-DP-0002360-2015, FID: 51-FN-0019119-2015 IN THE INTEREST OF: R.T.B. A/K/A R.B., A MINOR APPEAL OF: R.H., MOTHER : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 174 EDA 2018 Appeal from the Decree December 7, 2017 in the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000977-2016, CP-51-DP-0002359-2015, FID: 51-FN-0019119-2015 BEFORE: STABILE, J., STEVENS, P.J.E.,* and STRASSBURGER, J.** DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 10, 2018 * Former Justice specially assigned to the Superior Court. ** Retired Senior Judge assigned to the Superior Court. J-A18027-18 Because my independent review of the record does not reveal an issue of arguable merit, I would affirm the decrees terminating Mother’s parental rights to Children and grant counsel’s petition to withdraw. Here, the Majority concludes that “Children did not receive the benefit of counsel representing their legal interests and directed by them” because “the record contains no clear indication of the Children’s preferences.” Majority at 14. However, our Supreme Court’s decision in In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality), its more recent decision in In re T.S., __ A.3d __, 2018 WL 4001825 (Pa. 2018), and this Court’s interpretations of these cases do not demand such a requirement. We begin with L.B.M. In that seminal case, our Supreme Court held “that [23 Pa.C.S. § ]2313(a) requires the appointment of counsel who serves the child’s legal interests in contested, involuntary [termination of parental rights (TPR)] proceedings.” 161 A.3d at 180. “[A] child’s legal interests are distinct from his or her best interests, in that a child’s legal interests are synonymous with the child’s preferred outcome, while a child’s best interests must be determined by the court.” In re Adoption of T.M.L.M., 184 A.3d 585, 588 (Pa. Super. 2018). Recently, in In re T.S., 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, -2- J-A18027-18 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 the instant matter, the Family Court appointed legal counsel, Attorney Jeffrey Bruch, to represent Children’s legal interests. In addition, the Family Court appointed a guardian ad litem (GAL), Attorney Jaclyn Hart, who represented the Children’s best interests. However, according to the Majority, Attorney Bruch’s representation did not comply with this Court’s requirements for an attorney representing a Child’s legal interests. In T.M.L.M., we expounded upon the duties of counsel: Like adult clients, 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 Child’s preferred outcome in this case is synonymous with his best interests. It may be that Child wants no contact with Mother. Child may be unable to articulate a clear position or have mixed feelings about the matter. Furthermore, termination of Mother’s rights may still be appropriate even if Child prefers a different outcome. However, pursuant to the Supreme Court’s opinion in Sections 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. 184 A.3d at 590. Here, we agree with the Majority that the record does not state Children’s preferred outcomes. It also does not demonstrate that Attorney -3- J-A18027-18 Bruch attempted to interview his clients and ascertain their preferred outcomes.1 However, we have no reason to believe that these things did not occur, which makes this case distinguishable from other cases cited by the Majority, where this Court required a remand. We begin with T.M.L.M. In that case, the orphans’ court appointed Attorney Suzann Lehmier to represent the child at the TPR hearing. Attorney Lehmier stated on the record at the TPR hearing that she did not meet with or talk to her client. 184 A.3d at 589. She further told the trial court her “only concern [is] his best interests.” Id. (emphasis omitted). Thus, this Court concluded that Attorney Lehmier’s representation of the child was deficient. We next consider In re Adoption of M.D.Q., __ A.3d __, 3322744 (Pa. Super. 2018). In that case, the children’s father and stepmother petitioned to terminate the mother’s parental rights. Attorney Courtney Kubista was appointed as “Attorney for the Children.” Id. at n.1. The record revealed that Attorney Kubista did indeed interview the children, who were eight and sixand-a-half years old, and subsequently concluded that “termination was warranted in this matter in regard to the best interests of [c]hildren.” Id. at *4. This Court’s review of the record revealed that counsel’s representation of children was deficient because despite the fact she was appointed as counsel for the children, she advocated for their best interests without At the time of the hearing, Children were eight-and-a-half and four-and-ahalf years old. 1 -4- J-A18027-18 providing an explanation to the court as to why. Furthermore, counsel’s statements to the orphans’ court and this Court suggested that she was speculating as to Children’s preferred outcomes instead of following their direction. Additionally, the record indicated a potential conflict between the position counsel took and the position of one of the children. Thus, on appeal, this Court could not conclude that the children “were provided with counsel who represented their legal interests and took direction from [them] to the extent possible due to their ages.” Id. Finally, we consider In re Adoption of D.M.C., __ A.3d __, 2018 WL 3341686 (Pa Super. 2018). That case involved two children, one who was 12 and one who was almost 4. The orphans’ court appointed an attorney as “court-appointed counsel” for the children. Id. at *2. That attorney later withdrew and new counsel was appointed. However, in neither instance was it clear whether counsel was appointed as legal counsel or best-interests counsel, especially because counsel sometimes referred to himself as a GAL for the children. Furthermore, the record reveals that counsel spoke one time to the older child, and that conversation occurred the night before the TPR hearing. In that call, according to counsel, the child indicated “he’s ready for permanency.” Id. at *3. Thus, the attorney told the orphans’ court that “permanency” was in his “best interests.” Id. Counsel also suggested a postadoption contract agreement. -5- J-A18027-18 On appeal, counsel indicated that the child wanted to be adopted, but also wanted to remain in contact with his mother. Based on the foregoing, this Court concluded that it is unclear whether the child “received the benefit of [his] statutorily-required right to client-directed counsel serving [his] legal interests.” Id. at *5. The failure of the orphans’ court to clarify counsel’s role, along with counsel’s inherently conflicting representations, required this Court to remand. We now turn to the facts of the instant case. Here, as indicated supra, Children were appointed both legal counsel and a GAL. The GAL asked questions at the TPR hearing. Although counsel did not ask any questions at the hearing or file a brief on appeal, there is nothing in the record that would suggest that Children’s positions did not align with their best interests or that counsel failed to perform his duties. Thus, the situation in this case is distinguishable from the aforementioned, and I would conclude that there is no issue of arguable merit with respect to Children’s representation by legal counsel. That being said, I would be remiss not to point out that 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 -6- J-A18027-18 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 permanency, I suggest 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.2 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 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. 2 -7- J-A18027-18 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). However, the aforementioned best practices are not required by either L.B.M. or T.S. at this point.3 Children are entitled to legal counsel, and they indeed had that here. Counsel, whether they represent children or adults, are bound to follow the Pennsylvania Rules of Professional Conduct. As in all other areas of law, we presume counsel to be effective, so unless it is apparent from the record before us that there may be a question as to whether a child was deprived of the child’s statutory right to legal-interest counsel, this Court should not remand for clarification of counsel’s role of children’s preference. We recognize that section 6311 of the Juvenile Act does indeed mandate some of these best practices for dependency proceedings. See 42 Pa.C.S. § 6311(b)(9). However, TPR hearings are governed by the Adoption Act, which at this time imposes no similar requirements. See 23 Pa.C.S. § 2313. 3 -8-
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