In re J'K.M.

191 A.3d 907

IN RE: J'K.M., a Minor

Appeal of: A.M., Natural Mother

No. 1390 WDA 2017

Superior Court of Pennsylvania.

Argued February 27, 2018

Filed June 26, 2018

Benjamin N. Zuckerman, Pittsburgh, for appellant.

Scott M. Hollander, Pittsburgh, for appellee.

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER^* , J.

OPINION BY SHOGAN, J.:

A.M. ("Mother"), the natural mother of J'K.M. ("Child"), appeals from the order entered on August 24, 2017, denying Mother's motion for the appointment of a separate guardian ad litem ("GAL"), to represent Child's best interests in the underlying dependency proceedings.¹ After careful review, we reverse and remand for the trial court to appoint a GAL to represent Child's best interests and Child's current GAL shall act as counsel representing Child's legal interests.

The trial court set forth the relevant facts and procedural history of this matter as follows:

[Child] is a 16 year old girl^{[2 ]} who had previously been declared dependent^{[3 ]} but remained in the care of [M]other. [Child has, at times, been placed in foster care. Order, 4/18/16; Order 7/27/17.] [Child] has a history of serious health problems, specifically asthma that requires close medical supervision. On a number of occasions [M]other and [Child] both neglected the appropriate medication to control [Child's] asthma. As a result of this neglect [Child] was required to be hospitalized on a number of occasions. Additionally, after said hospitalizations doctor['s] appointments have been scheduled for [Child] to monitor and follow up on her treatment. Once again, [M]other and [Child] more than once failed to attend these appointments. As a result of the failure to appreciate the seriousness of [Child's] asthma and the impact on her health she has been hospitalized on more than one occasion. The caseworker testified that there is family history of serious asthma complications including the death of [Child's] father as asthma related.

In addition to the health concerns, testimony was set forth at a Permanency Review Hearing on June 19, 2017 before Hearing Officer Hobson that [Child] often stays away from home for multiple nights with either friends or her boyfriend. Specifically, at the time of the hearing [Child] had been staying with her boyfriend because of a fight she had with [M]other.

Prior to the Permanency Review Hearing Attorney Engle was appointed both as Attorney for [Child], as well as Guardian Ad Litem for [Child].

During the Permanency Review Hearing testimony was presented by [M]other who confirmed that she had missed meetings and indicated that she had a "full plate" with her other children and sometimes had difficulties making all medical appointments. [Child] also testified and indicated that she wanted to be in charge of her medical treatment but understood at age 16 she was unable to do so. That being said, [Child] was allowed to fully testify by Attorney Engle and she fully set her position that she wished to return home to [M]other. [Child] did not like living in foster care because she was made to follow a more structured schedule with things such as eating meals, sleep times and attendance of school. At the conclusion of the testimony Attorney Engle, in the role as Counsel for [Child] set forth [C]hild's legal interests which is the expression of the child's wishes. Attorney Engle set forth that [C]hild's testimony was clear both as to her reasoning to go home to live with [M]other and her desire to remain with [M]other.^[4] Attorney Engle then acting as Guardian Ad Litem was required to set forth the appropriate Guardian Ad Litem opinion as to the best interest for [Child]. This Opinion was based upon the on-going hospitalizations of [Child], [M]other's failure to attend medical appointments, [and Child's] failure to attend medical appointments as well as truancy issues[;] [these factors] caused the Guardian Ad Litem to opine that [Child] should be removed from the home.

It was at this point counsel for [M]other objected and asked for the appointment of a separate Guardian Ad Litem ....

Counsel for [M]other filed what was entitled a Motion For Appointment For Separate Guardian Ad Litem. While this Court believes such Motion was incorrectly titled, the Court treated the Motion [as] a Motion To Disqualify Attorney Engle as Guardian Ad Litem due to conflict of interest.

A hearing was conducted before this Court on the Motion at which time all parties stipulated to the transcript of the proceedings before Hearing Officer Hobson. No further testimony or any factual evidence was presented at the time of this Motion. After hearing the legal arguments of all parties this Court denied the request to appoint a separate Guardian Ad Litem.

Trial Court Opinion, 11/20/17, at 1–3.

On September 25, 2017, Mother filed a timely notice of appeal.⁵ Both Mother and the trial court complied with Pa.R.A.P. 1925.

On appeal, Mother raises the following issue for this Court's consideration:

Does a conflict of interest arise when a child expressly states their preferred outcome and the GAL attorney advocates for another?

Mother's Brief at 6 (full capitalization omitted).

Review in dependency cases requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but it does not require the appellate court to accept the lower court's inferences or conclusions of law. In Interest of J.P. , 178 A.3d 861, 864 (Pa. Super. 2018). Accordingly, we review the trial court's decision under an abuse-of-discretion standard. Id.

Necessary to our discussion of Mother's issue are two Pennsylvania Rules of Juvenile Court Procedure and one section of the Juvenile Act, 42 Pa.C.S. §§ 6301 – 6375. Rule 1151 of the Pennsylvania Rules of Juvenile Court Procedure provides, in relevant part:

Assignment of Guardian Ad Litem & Counsel

A. Guardian ad litem for child. The court shall assign a guardian ad litem to represent the legal interests and the best interests of the child if a proceeding has been commenced pursuant to Rule 1200 alleging a child to be dependent who:

(1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the physical, mental or emotional health, or morals;

* * *

B. Counsel for child. The court shall appoint legal counsel for a child:

(1) if a proceeding has been commenced pursuant to Rule 1200 alleging a child to be dependent who:

(a) while subject to compulsory school attendance is habitually and without justification truant from school;

(b) has committed a specific act or acts of habitual disobedience of the reasonable and lawful commands of the child's guardian and who is ungovernable and found to be in need of care, treatment, or supervision;

(c) is under the age of ten years and has committed a delinquent act;

(d) has been formerly adjudicated dependent, and is under the jurisdiction of the court, subject to its conditions or placements and who commits an act which is defined as ungovernable in paragraph (B)(1)(b);

(e) has been referred pursuant to section 6323 (relating to informal adjustment), and who commits an act which is defined as ungovernable in paragraph (B)(1)(b); or

(f) has filed a motion for resumption of jurisdiction pursuant to Rule 1634; or

(2) upon order of the court.

C. Counsel and Guardian ad litem for child. If a child has legal counsel and a guardian ad litem, counsel shall represent the legal interests of the child and the guardian ad litem shall represent the best interests of the child.

Pa.R.J.C.P. 1151(A)-(C). Rule 1154 provides:

Duties of Guardian Ad Litem

A guardian ad litem shall:

(1) Meet with the child as soon as possible following assignment pursuant to Rule 1151 and on a regular basis thereafter in a manner appropriate to the child's age and maturity;

(2) On a timely basis, be given access to relevant court and county agency records, reports of examination of the guardians or the child, and medical, psychological, and school records;

(3) Participate in all proceedings, including hearings before juvenile court hearing officers, and administrative hearings and reviews to the degree necessary to adequately represent the child;

(4) Conduct such further investigation necessary to ascertain the facts;

(5) Interview potential witnesses, including the child's guardians, caretakers, and foster parents, examine and cross-examine witnesses, and present witnesses and evidence necessary to protect the best interests of the child;

(6) At the earliest possible date, be advised by the county agency having legal custody of the child of:

(a) any plan to relocate the child or modify custody or visitation arrangements, including the reasons, prior to the relocation or change in custody or visitation; and

(b) any proceeding, investigation, or hearing under the Child Protective Services Law, 23 Pa.C.S. § 6301 et seq. or the Juvenile Act, 42 Pa.C.S. § 6301 et seq., directly affecting the child;

(7) Make any specific recommendations to the court relating to the appropriateness and safety of the child's placement and services necessary to address the child's needs and safety, including the child's educational, health care, and disability needs;

(8) Explain the proceedings to the child to the extent appropriate given the child's age, mental condition, and emotional condition; and

(9) Advise 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. When appropriate because of the age or mental and emotional condition of the child, determine to the fullest extent possible the wishes of the child and communicate this information to the court.

Pa.R.J.C.P. 1154. Furthermore, the comment to Rule 1154 provides guidance as to how the parties and the court are to manage a conflict between the best interests and legal interests of a child as follows:

Comment: If there is a conflict of interest between the duties of the

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