Adoption of N.M.T., Appeal of: M.G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF N.M.T. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

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APPEAL OF: M.G. : No. 157 WDA 2018

Appeal from the Order Entered December 29, 2017

in the Court of Common Pleas of Fayette County,

Orphans' Court at No(s): 46 Adopt 2017

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 18, 2018

M.G. (“Mother”) appeals from the Order denying her Petition to

terminate the parental rights of M.T. (“Father”) to his son, N.M.T. (“Child”).

We vacate and remand.

Child was born in April 2012. Mother and Father were not married and

ended their relationship shortly after Child’s birth. Mother married J.T.

(“Stepfather”) in September 2017. On October 23, 2017, the trial court held

a hearing (the “termination hearing”) on Mother’s Petition (the “TPR Petition”).

Mother filed the termination Petition so that Stepfather could adopt Child.

Mother and Father appeared, both represented by counsel, and testified on

their own behalf. Notably, Child was not present, and the trial court did not

appoint legal counsel or a Guardian ad litem (“GAL”) for Child. The trial court

subsequently entered an Order denying the TPR Petition. Mother filed a timely

Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

errors complained of on appeal.

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Mother now presents the following issues for our review:

I. Whether the trial court erred and abused its discretion in failing

to appoint a [GAL] for [Child] and/or failing to appoint legal

counsel for [Child]?

II. Whether the trial court erred and abused its discretion in failing

to conclude that [Mother] met her burden of proof in establishing

grounds for termination of [Father’s] parental rights pursuant to

23 Pa.C.S.A. [§] 2511(a)(1) and/or 23 Pa.C.S.A.

[§] 2511(a)(2)[?]

III. Whether the trial court erred and abused its discretion in

failing to conclude that the developmental, physical and emotional

needs and welfare of [Child] warranted a termination of [Father’s]

parental rights pursuant to 23 Pa.C.S.A. [§] 2511(b)?

IV. Whether the [t]rial [c]ourt erred and abused its discretion in

concluding there was no legally qualified adoptive father currently

seeking to adopt [] [C]hild in the within matter?

V. Did the [t]rial [c]ourt erred [sic] in failing to disregard the

testimony of Tony Schrim, an unlicensed therapist, over the

objection of [Mother’s] [c]ounsel?

Brief for Appellant at 4.

In her first claim, Mother alleges that the trial court failed to appoint

counsel and a GAL for Child, in violation of 23 Pa.C.S.A. § 2313. Brief for

Appellant at 13-15. Mother argues that section 2313 required the trial court

to appoint counsel to represent Child’s legal interests, and, if Child’s legal

interests and best interests conflict, a GAL to represent Child’s best interests.

Id. at 13-14. According to Mother, the case must be reversed and remanded

for a rehearing on the TPR Petition, with Child sufficiently represented by

counsel to represent his legal interests, and if a there is a conflict in legal and

best interests, a GAL.

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Section 2313, in relevant part, provides as follows:

§ 2313. Representation

(a) Child.--The court shall appoint counsel to represent the child

in an involuntary termination proceeding when the proceeding is

being contested by one or both of the parents. The court may

appoint counsel or a guardian ad litem to represent any child who

has not reached the age of 18 years and is subject to any other

proceeding under this part whenever it is in the best interests of

the child. No attorney or law firm shall represent both the child

and the adopting parent or parents.

23 Pa.C.S.A. § 2313(a) (italicization added). A “proceeding” is defined as

“[t]he regular and orderly progression of a lawsuit, including all acts and

events between the time of commencement and the entry of judgment.”

BLACK’S LAW DICTIONARY 1241 (8th ed. 2004); see also 23 Pa.C.S.A. § 5402

(defining “[c]hild custody proceeding” as “[a] proceeding in which legal

custody, physical custody or visitation with respect to a child is an issue. The

term includes a proceeding for … termination of parental rights ….”).

In a plurality decision, our Supreme Court held that under 23 Pa.C.S.A.

§ 2313(a), courts must appoint counsel to represent the legal interests of a

child in a contested involuntary termination proceeding. In re Adoption of

L.B.M., 161 A.3d 172, 179-80 (Pa. 2017). Three members of the Court held

that a child’s legal interests cannot be represented by his or her GAL, and

requires the appointment of separate counsel. Id. at 180-82; see also id. at

174 (noting that a child’s best interests are distinct from his/her legal

interests). However, the majority of the Court concluded that counsel may

serve both as the GAL, representing the child’s best interests, and as the

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child’s counsel, representing the child’s legal interests, as long as there is no

conflict between the child’s legal and best interests. Id. at 183-93; see also

In re T.S., 2018 WL 4001825, at *10 (Pa. 2018) (stating that “during

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.” (italicization added)).; In re D.L.B., 166 A.3d 322, 329 (Pa. Super.

2017) (stating that “separate representation would be required only if the

child’s best interests and legal interests were somehow in conflict.”).

Recently, this Court held that the failure to appoint legal counsel to a

child in a contested involuntary termination of parental rights proceeding is

structural error. See In re K.J.H., 180 A.3d 411, 413 (Pa. Super. 2018). “A

structural error is defined as one that affects the framework within which the

trial proceeds, rather than simply an error in the trial process itself.” Id.

(citation omitted). As a result, where the termination proceeding is contested,

the case must be remanded for the appointment of counsel. See id. at 413-

14; accord In re Adoption of T.M.L.M., 184 A.3d 585, 587-88 (Pa. Super.

2018).

Here, Father contested Mother’s Petition to terminate his parental rights.

Thus, the trial court was required to appoint Child counsel. See In re

Adoption of T.M.L.M., 184 A.3d at 588 (noting that “[a]ppointment of

counsel representing the child is mandatory, and failure to do so is legal

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error.”); In re Adoption of G.K.T., 75 A.3d 521, 527 (Pa. Super. 2013)

(stating that the court “committed reversible error in failing to appoint a

counsel for the [c]hild as required by section 2313(a).”). While the trial court

ultimately denied the TPR Petition, section 2313(a) and L.B.M. clearly state

that counsel must be appointed in an involuntary termination proceeding.

Thus, the obligation to appoint Child counsel under section 2313(a) was

triggered when Mother filed the TPR Petition and Father contested the Petition.

We cannot consider the trial court’s final determination where it would

circumvent this mandate. See, e.g., In re K.J.H., 180 A.3d at 413-14

(stating that the failure to appoint counsel to the child pursuant to section

2313(a) was a structural error requiring remand for the appointment of

counsel, despite the fact that grandparents’ petition to terminate mother’s

parental rights had been denied); In re Adoption of G.K.T., 75 A.3d at 527-

28 (concluding that failure to appoint the child counsel under section 2313(a)

required reversal of order granting adoptive couple’s petition to terminate

father’s parental rights).

Based upon this legal error, we are constrained to vacate the Order on

appeal, and remand the matter to the trial court for further proceedings, prior

to which the court shall appoint legal counsel to represent Child, and a

separate GAL to represent Child’s best interests, if it is determined to be

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necessary by the trial court. See L.B.M., 161 A.3d at 183-93; In re D.L.B.,

166 A.3d at 329.1, 2

Order vacated; case remanded for further proceedings consistent with

this Memorandum, with instructions that the trial court shall appoint legal

counsel to represent Child, and a separate guardian ad litem to represent

Child’s best interests, if necessary, to review the matter and participate in any

new termination hearing. Jurisdiction relinquished.

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1 We note that in In re Adoption of T.M.L.M., this Court, after determining

that a child was deprived of his statutory right to counsel, stated the following:

Upon remand, the court shall appoint separate counsel for [c]hild

to represent his legal interests. After review of the prior

proceedings and appropriate consultation with [c]hild, [c]hild’s

legal-interests counsel shall notify the orphans’ court whether the

result of the prior proceedings is consistent with [c]hild’s legal

interests or whether counsel believes a new hearing is necessary

to provide counsel an opportunity to advocate on [c]hild’s behalf.

The orphans’ court shall conduct a new hearing only if it serves

the “substantive purpose” of providing [c]hild with an opportunity

to advance his legal interests through his new counsel.

In re Adoption of T.M.L.M., 184 A.3d at 591 (footnotes omitted). The Court

further held that if a new hearing is not held, the trial court could reenter its

original order. Id. Based upon this precedent, on remand, the trial court shall

appoint Child counsel to represent his legal and best interests. Counsel will

then have the opportunity to review the prior proceedings and notify the trial

court as to whether new proceedings are required. If the trial court decides a

new hearing is not required, it is free to reenter its original Order. See id.

2 Based upon our disposition, we need not address Mother’s remaining claims.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/2018

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