In re T.S.

192 A.3d 1080

IN RE: T.S., E.S., Minors

Appeal of: T.H.-H., Natural Mother

Nos. 50 & 51 WAP 2017

Supreme Court of Pennsylvania.

Argued: April 10, 2018

Decided: August 22, 2018

Simone Nicole DeJarnett, Esq., K & L Gates LLP, David R. Fine, Esq., for Support Center for Child Advocates, Amicus Curiae, Defender Assn of Philadelphia, Child Advocacy Unit, Amicus Curiae, Dauphin County Social Services for Children & Youth, Amicus Curiae, Johnston-Walsh, Lucy, Amicus Curiae.

Marsha Levick, Esq., Jennifer Kres Pokempner, Esq., Lisa Bolotin Swaminathan, Esq., for Juvenile Law Center, Amicus Curiae, American Civil Liberties Union of Pennsylvania, Amicus Curiae, Community Legal Services, Inc., Amicus Curiae, National Coalition for a Civil Right to Counsel, Amicus Curiae, Pennsylvania Legal Aid Network, Amicus Curiae, Community Justice Project, Amicus Curiae, Finck, Kara Ryan, Amicus Curiae, National Association of Counsel for Children, Amicus Curiae.

Kiersten M. Frankowski, Esq., Allegheny County Bar Foundation, Catherine L. Volponi, Esq., Juvenile Court Project, for T.H.-H., Appellant.

Melaniesha Abernathy, Esq., CYF Adoption Legal Unit, Paula Jean Benucci, Esq., Allegheny County Law Department, for OCYF-Legal Unit-Adoption, Appellee.

Jonathan Budd, Esq., Kidsvoice, Cynthia B. Moore, Esq., for T.S., Appellee, E.S., Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

CHIEF JUSTICE SAYLOR

This appeal involves a proceeding in which parental rights were involuntarily terminated. Throughout the termination proceedings, up to and including the hearing on the termination petition, an attorneyguardian ad litem represented the best interests of the children involved. The primary issue is whether the common pleas court erred in failing to appoint a separate attorney to represent their legal interests.

I. Background

A. In re Adoption of L.B.M.

The present appeal follows closely upon our decision in In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172 (2017). In that matter, this Court interpreted and applied Section 2313(a) of the Adoption Act. See 23 Pa.C.S. § 2313(a) (relating to representation in proceedings under the Adoption Act). Although multiple opinions were filed in L.B.M. , a majority of the Court agreed on several points: (a) in the context of contested termination-of-parental-rights ("TPR") proceedings, the first sentence of Section 2313(a) requires that the common pleas court appoint an attorney to represent the child's legal interests, i.e. , the child's preferred outcome;¹ (b) where there is a conflict between the child's legal interests and his best interests, an attorney-guardian ad litem (an "attorney-GAL"), who advocates for the child's best interests, cannot simultaneously represent the child's legal interests;² and (c) in such a circumstance, 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.

While the lead opinion indicated that there must always be a separate attorney representing the child's legal interests, see L.B.M. , 639 Pa. at 442-43, 161 A.3d at 180-81 (plurality in relevant part), that portion of the opinion represented the views of three Justices – Justices Wecht, Donohue, and Dougherty. The four Justices in a responsive posture were of the view that an attorney-GAL can fill the role required by Section 2313(a), while also advancing the child's best interests, so long as there is no conflict between the child's legal interests and best interests.³

In terms of disposition, L.B.M. vacated the TPR decree and remanded to the trial court for further proceedings. Of the five members who supported that result, the three lead Justices did so because no separate counsel had been appointed for the children involved, thereby violating the rule they favored broadly prohibiting one attorney serving both roles in any contested TPR proceeding. See id. at 446, 161 A.3d at 183 (plurality in relevant part). The two Justices concurring in the result supported the outcome on narrower grounds, namely, that the trial court had failed to conduct a conflict analysis to determine whether the attorney-GAL could fulfill both roles in that specific case. See id. at 448, 161 A.3d at 184 (Saylor, C.J., concurring). Notably, at the time of the TPR hearing in L.B.M. , the children were four and eight years old, and the hearing transcript reflected that the eight-year-old in particular was able to articulate his feelings and beliefs about the case and respond rationally to the judge's questions concerning his preference as to the outcome of the TPR proceedings. See id. at 436, 161 A.3d at 177.

B. Factual and procedural history of this case

Turning to the present controversy, T.S. and E.S. were born to Appellant T.H.-H. ("Mother") in June 2013 and August 2014, respectively. The Allegheny County Office of Children, Youth and Families ("CYF") became familiar with Mother shortly after E.S.'s birth.

Mother admitted to using marijuana while pregnant with E.S., and she tested positive for THC (a cannabinoid) shortly after giving birth. CYF did not initially file a dependency petition, opting instead to provide services to help Mother implement her goals. However, Mother was not substantially compliant with treatment and failed to discontinue her drug use. Also, she admitted to smoking marijuana in the presence of the children, exhibited minimal parenting skills – often leaving Children in a bedroom unattended with the television "blaring," and failing to undertake basic parenting tasks such as feeding the children or changing their diapers – and did not follow through with E.S.'s medical appointments. See N.T., Feb. 3, 2017, at 8, 13-14.⁴

Beginning in January 2015, home visits were conducted by a caseworker from an independent social services agency, who helped Mother with various aspects of parenting and budgeting. On one visit, the caseworker developed concerns for the safety of the children when she observed an open oven being used to heat the residence, the presence of a cigarette lighter and a large knife where T.S. could access them, and a used condom on the floor which she believed could constitute a choking hazard. See N.T., Feb. 3, 2017, at 52-53. Although she discussed these matters with Mother, Mother downplayed their significance and generally did not appear to appreciate that they could compromise the children's safety.

In July 2015, a CYF caseworker made an unannounced visit and noticed that the home smelled of marijuana and Mother was under the influence of drugs or alcohol. Because CYF believed it could no longer ensure the safety of the children in Mother's care, it sought an emergency custody authorization and the children were removed that day. They were adjudicated dependent and placed with foster parents. For the placement and permanency review period that followed, the court appointed KidsVoice (a child-advocacy organization in Pittsburgh) to represent the children's best interests and legal interests in compliance with Section 6311 of the Juvenile Code. See 42 Pa.C.S. § 6311 ; Pa.R.J.C.P. 1154.

After the foster care placement, Mother's court-ordered goals were, inter alia , to participate in drug and alcohol treatment (which included random urine screens), mental health treatment, and parenting classes, and to visit her children and maintain contact and cooperation with CYF. The court appointed Beth Bliss, Psy.D., a licensed forensic psychologist, to conduct evaluations. Dr. Bliss evaluated Mother individually and performed interactional evaluations between the children and Mother, and between the children and their foster parents.⁵

In late 2016, CYF filed a petition to terminate Mother's parental rights, which Mother contested.⁶ The court held a hearing on the petition on February 3, 2017. At the hearing, CYF was represented by Melaniesha Abernathy, Esq.; Mother was represented by Kiersten Frankowski, Esq., of the Allegheny County Bar Foundation's Juvenile Court Project; and, as reflected on the hearing transcript and the TPR docket sheet, the children were represented by Cynthia J. Moore, Esq., from KidsVoice. The orders appointing KidsVoice to represent the children in the dependency proceedings stated it was to represent their legal and best interests, and it is undisputed that this dual function carried over into the termination proceedings. Thus, the children had continuity of representation between the dependency and TPR proceedings. However, no independent counsel represented solely the children's legal interests in the latter proceedings.

The CYF caseworker, the ACHIEVA employee, and Dr. Bliss were among the witnesses called by CYF. According to their testimony, Mother was inconsistent or non-compliant with most of the treatment programs to which CYF referred her – including dual-diagnosis (i.e. , mental health and substance abuse) treatment – and had difficulty providing clean urine screens, see N.T., Feb. 3, 2017, at 10-11; she was unable to understand or manage the needs of both children simultaneously during supervised visits, including their safety needs, see id. at 13, 31, 36, 39, 64; see generally id. at 37 (reflecting the ACHIEVA worker's assessment that Mother "would need 24/7 supports if she were alone with the children"); and she only minimally complied with the court's permanency plan, see id. at 31. More generally, the conditions leading to the children's removal had not been remedied, nor were they likely to be within a reasonable timeframe. See, e.g. , id. at 24. In foster care, moreover, T.S.'s speech and overall behaviors "improved greatly," and E.S.'s feeding problems resolved. Id. at 21. The CYF caseworker expressed that it would be best for the children to remain with the foster parents and ultimately to be adopted by them. See id. at 24.

Dr. Bliss testified that Mother did not prioritize being a parent, as she missed numerous visits with the children...