In re K.J.H.

180 A.3d 411

IN RE: K.J.H., a Minor

Appeal of: L.A.P. and D.W.P.

No. 1226 MDA 2017

Superior Court of Pennsylvania.

Submitted November 6, 2017

Filed February 20, 2018

Michael S. Bechtold, Lebanon, for appellants.

Derek Henninger, Jonestown, for D.H., appellee.

Pier N. Hess, Lebanon, for K.M.Z., appellee

BEFORE: OLSON, DUBOW, and STRASSBURGER,^* JJ.

OPINION BY STRASSBURGER, J.:

L.A.P. (Paternal Grandmother) and D.W.P. (Paternal Grandfather) (collectively, Paternal Grandparents) appeal from the order entered on July 11, 2017, denying their petition to terminate involuntarily the parental rights of K.Z. (Mother) as to K.J.H. (Child). After review, we vacate the order and remand for proceedings consistent with this opinion.

The orphans' court set forth the factual background of this case as follows:

[Child] was born [in February of 2012 to Mother and D.J.H. ("Father"). Child] was born opium dependent due to Mother's use of heroin during her pregnancy. [C]hild stayed in the [neo-natal intensive care unit] after his birth, but was eventually released into Mother's care, and remained in Mother's care until she went to prison due to drug use. When she went to prison, she left [C]hild in Father's care; however, Father also has a history of drug use, and he [was incarcerated shortly after assuming custody of Child]. When Father was no longer able to care for [Child, Paternal Grandmother] assumed custody of [C]hild.

* * *

Since 2012, Mother has not provided support, either financially or emotionally, for [C]hild. Mother testified that[,] while incarcerated, she stopped attempting to contact [C]hild because [Paternal] Grandmother stated that [C]hild's therapist said it would be detrimental to hear from Mother. Also, Mother testified that she was told by [a staff member] at Lebanon County Prison that [Paternal] Grandmother did not want Mother to contact her or [C]hild, and[,] if Mother continued to do so, Mother would be charged with harassment.

During Mother's incarceration from 2014 to 2017, Mother attempted to send [C]hild three cards/drawings via her [parents] but none of these cards made it to [C]hild. Only one attempt to send a card to [C]hild was made within six [ ] months prior to [Paternal Grandparents'] filing of [the termination petition]. Mother is currently out of prison and sober. Mother moved in with her mother [ ] in Elizabethtown in order to aid her in staying sober. Mother is working and attending drug addiction counseling twice a week and taking an opioid-blocking medication. Mother has three other children beside[s C]hild in this matter. Mother's goal is to gradually start seeing all of her children, and start to work her way to having periods of custody with each child. Currently, Mother is seeing all of her children on a monthly basis, except [C]hild subject to this [p]etition.

On March 15, 2012, Father signed a guardianship agreement granting full guardianship of [C]hild to [Paternal] Grandmother. On May 4, 2012, [via a court order, Paternal] Grandmother was granted temporary physical and legal custody of [C]hild.

Trial Court Opinion, 8/7/17, at 2–4. Mother was incarcerated at Lebanon County Prison from 2014 to 2017 and she never contested this custody arrangement. Mother was released from prison on February 27, 2017.

On February 24, 2017, Paternal Grandparents filed a petition seeking to terminate involuntarily Mother's parental rights and terminate voluntarily Father's parental rights as to Child. On May 18, 2017, the trial court held a hearing on the petition. On July 11, 2017, the trial court denied Paternal Grandparents' petition to terminate Mother's parental rights.¹ This timely appeal followed. Both Paternal Grandparents and the orphans' court complied with Pa.R.A.P. 1925.

Before we reach the issues presented by Paternal Grandparents on appeal, we address sua sponte the orphans' court's failure to appoint counsel for Child, as it is structural error requiring our consideration.² The concept of structural error in termination of parental rights cases has been addressed recently by our Supreme Court.

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. Structural errors are not subject to harmless error analysis. Generally, denial of counsel is a structural error, see Commonwealth v. Martin , 5 A.3d 177, 192 ( [Pa.] 2010) ; although such error usually stems from deprivation of a constitutional right to counsel. Here, by contrast, the right to counsel is statutory.^{[3 ]} Nonetheless, we do not find that distinction to be determinative. The same concerns are evident regardless of the derivation of the right. Whether the right to counsel is conferred by constitution or statute, the right having been conferred must be protected.

In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172, 183 (2017) (Opinion Announcing the Judgment of the Court, with five Justices joining this section).

Instantly, Mother was contesting Paternal Grandparents' petition; accordingly, the orphans' court was mandated to appoint counsel. Moreover, Child, due to his minority and lack of representation in the orphans' court, could not raise this issue himself. As we have pointed out:

The right to counsel belongs to the child, and there is no appointed counsel for the child who could have raised the child's rights in the proceedings before the [orphans'] court. The question goes to a fundamental statutory requisite to the [orphans'] court's decision in this matter.

Upon our careful review of the record in this case and the [orphans'] court's disposition, we must conclude that the [orphans'] court committed an error of law by failing to appoint counsel to represent the child pursuant to 23 Pa.C.S.A. § 2313(a), which directs that the court "shall" appoint such counsel. This Court has previously observed that the word "shall" is usually mandatory or imperative when used in a statute, although whether that word is directory or permissive is dependent upon the intent of the Legislature. Regarding the Legislature's use of the word "shall" in section 2313(a) of the Adoption Act, this Court has interpreted the word "shall" in section 2313 ( [a] ) as being mandatory, not permissive, and as serving as a direction to the court to appoint counsel.

In re Adoption of G.K.T. , 75 A.3d 521, 526 (Pa. Super. 2013) (citing In re E.F.H. , 751 A.2d 1186, 1189–90 (Pa. Super. 2000) ). See also In re Adoption of N.A.G. , 324 Pa.Super. 345, 471 A.2d 871 (1984) (holding 23 Pa.C.S. § 2313(a) creates a statutory right for a child to have counsel appointed who actively advances his or her needs and welfare and owes loyalty exclusively to him or her; failure to appoint counsel prior to hearing was only harmless because the court eventually appointed counsel and the children did not wish to contest the termination decree); E.F.H. (recognizing the unique position of children, who have no one to raise failure to appoint statutorily-required counsel on their own behalf); G.K.T. (same).

Based on the foregoing, the orphans' court erred by not appointing counsel for Child, and this Court can and must consider this issue sua sponte .⁴ Accordingly, we vacate the order and remand for proceedings consistent with this opinion.

Order vacated. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

Judge Dubow joins this opinion.

Judge Olson files a dissenting opinion.

DISSENTING OPINION BY OLSON, J.:

I agree with the learned Majority's conclusion that the trial court violated 23 Pa.C.S.A. § 2313(a) by failing to appoint counsel for Child. Like the author of the Majority, I joined now-Justice Mundy's opinion in In re Adoption of G.K.T. , 75 A.3d 521 (Pa. Super. 2013). Hence, I agree that failure to appoint counsel for the Child is reversible error. I disagree, however, with the Majority's holding that we may raise this issue sua sponte . In my view, we lack the authority to raise the issue sua sponte . Hence, I dissent.

"It is well-established that where the parties in a case fail to preserve an issue for appeal, an appellate court may not address that issue sua sponte ." Johnson v. Lansdale Borough , 637 Pa. 1, 146 A.3d 696, 709 (2016) (citation omitted). There are few exceptions to this rule, e.g. , this Court may raise the issue of subject matter jurisdiction sua sponte . See Commonwealth v. Parker , 173 A.3d 294, 296 (Pa. Super. 2017) (citation omitted).

The Majority relies on G.K.T. in support of its argument that we must vacate the trial court's order in this case. In G.K.T. , however, the appellant raised the failure to appoint counsel for the child before this Court. Id. at 525. In this case Paternal Grandparents did not raise the issue before this Court. Thus, G.K.T. is distinguishable from the case at bar.

The Majority cites In re X.J. , 105 A.3d 1 (Pa. Super. 2014), in support of its argument that we may raise the failure to appoint Child counsel sua sponte . In X.J. , this Court denied an attorney's petition to withdraw as counsel pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). X.J. , 105 A.3d at 4. Thus, this Court had a well-established duty to independently review the record to determine the presence of any issues of arguable merit and this Court raised the trial court's failure to appoint counsel for the mother in the context of discharging that duty. In this case, we do not have a duty to independently review the record to determine if Paternal Grandparents' counsel missed an issue of arguable merit. To the contrary, this Court is forbidden from performing that review. See Johnson , 146 A.3d at 709.

The Majority also relies on In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172 (2017). In that case, our Supreme Court held that failure to appoint counsel, separate from the guardian ad litem , for children in a contested termination of parental rights case is structural error. See id. at 183. In L.B.M. , however,...