IN THE INTEREST OF: D.N.G., A MINOR APPEAL OF: A.G., MOTHER
No. 480 EDA 2019
Superior Court of Pennsylvania
March 13, 2020
2020 PA Super 62
BOWES, J.
J-A27013-19. Appeal from the Decree Entered January 17, 2019 in the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000207-2018. Consolidated with No. 481 EDA 2019, Appeal from the Order Entered February 1, 2019 in the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0002405-2016.
OPINION BY BOWES, J.:
FILED MARCH 13, 2020
In these consolidated appeals, A.G. (“Mother“) appeals from the January 17, 2019 decree granting the petition filed by the Philadelphia Department of Human Services (“DHS“) to involuntarily terminate parental rights to her son D.N.G., born in October 2007, and the order changing the permanency goal
The family court summarized the relevant facts and procedural history as follows:
DHS originally became involved with this family on November 5, 2014. DHS received a General Protective Services (“GPS“) report alleging that[:] Mother had not been providing food to D.N.G. and [his older brother who is not involved in this appeal]; Mother had not been ensuring that D.N.G. was attending school; D.N.G. had been playing in the streets without appropriate supervision; D.N.G. had attention deficit hyperactivity disorder (“ADHD“) and was not receiving treatment; Mother was pregnant; Mother had stated that the family home at the time was not her property; [and] Mother was unemployed. This report was determined to be valid. [DHS did not immediately remove D.N.G. from the family home. Instead, it initiated in-home services.]
. . . .
[D.N.G.] is truant. During the 2014-2015 school year, D.N.G. had 42 unexcused absences and 33 late arrivals to school. During the 2015-2016 school year, D.N.G. had 31.5 unexcused absences and 18 late arrivals to school. During the 2016-2017 school year, D.N.G. had 6 unexcused absences and 3 late arrivals to school. On September 27, 2016, CUA learned that Mother had
informed D.N.G.‘s school counselor that D.N.G. had been truant due to transportation issues from the shelter where the family was residing. On November 10, 2016, an adjudicatory hearing was held for D.N.G. and [his] siblings. D.N.G. was adjudicated dependent based on truancy and present inability to provide appropriate care and supervision. [D.N.G. remained in Mother‘s care in the family home.] Mother was ordered to comply with mental health treatment recommendations. Mother was also ordered to ensure D.N.G. attends school on a daily basis with no unexcused absences or [tardiness] as well as to sign all necessary releases. Mother and D.N.G. were referred to the Behavioral Health System (“BHS“) for monitoring. The trial court ordered that DHS supervision be implemented for [the] family.
Trial Court Opinion, 5/21/19, at 1-3. Twenty days after the adjudication of dependency, DHS removed D.N.G. from the family home and placed him in foster care, where he currently resides.
Over the ensuing fifteen and one-half months, Mother complied with the permanency plan intermittently and made marginal progress toward reunification. On March 16, 2018, DHS filed petitions in the family court to terminate Mother‘s parental rights and to change the permanency goal from reunification to adoption.
On January 17, 2019, the family court presided over a combined goal change/termination of parental rights trial. The court appointed Michael Graves, Esquire, as legal counsel for D.N.G. under
Notwithstanding D.N.G.‘s stated preference, the guardian ad litem‘s recommendation, and the court‘s own validation of the mother-son relationship, the family court granted DHS‘s petitions in open court, changed the permanency goal to adoption, and involuntarily terminated Mother‘s parental rights to D.N.G. pursuant to
Mother complied with
- Whether DHS presented clear and convincing evidence that Mother failed to remediate the conditions that led to the children‘s
removal, pursuant to 2511(a)(1) (2) (5) and(8) of the Adoption Act? - Whether the court erred and abused its discretion by granting the DHS Termination Petition severing Child from Mother in that DHS did not clearly and convincingly prove that it was in the [C]hild‘s best interest to be adopted, Child had ineffective assistan[ce] of counsel, and Child told the CUA social worker and the Child Advocate [that] Child wished to return home to Mother and did not want to be adopted?
Mother‘s brief at 4. DHS counters that the certified record supports the family court‘s determinations as to
The common theme that underlies Mother‘s second argument is that, despite advising the family court that D.N.G. did not want to be adopted, Attorney Graves neglected to represent that legal position zealously as required by
As noted, supra, DHS asserts that this argument is waived because it was not included in Mother‘s Rule 1925(b) statement. We disagree. While Mother framed her issues differently in the Rule 1925(b) statement, as we discuss infra, this claim was stated sufficiently for the family court to address
In contested involuntary termination proceedings, the representation of the child‘s legal interest is indispensable.
We previously articulated this principle as follows:
The purpose of the statutory requirement . . . [i]s not to create a right in [parents]. It was not intended to benefit a contesting parent or parents or to enhance by force of numbers the position of a contesting adult. Its purpose, rather, was to guarantee that the needs and welfare of the children would be advanced actively by an advocate whose loyalty was owed exclusively to them.
In re Adoption of N.A.G., 471 A.2d 871, 874-75 (Pa.Super. 1984) (footnote omitted).
As the case at bar does not implicate a potential conflict in the concurrent representation of D.N.G.‘s best interests and legal interest,
when a party fails to raise the [representation] issue before the orphans’ court and raises it for the first time on appeal[,] . . . the Superior Court should review the record to determine if the record is clear and undisputed about whether the child is able to express “a subjective, articulable preference [to be advanced by counsel during the termination proceedings]” and if so, whether the child‘s preferred outcome differed from the child‘s best interest.
Id. at 670 (quoting T.S., supra at 1089); see also In Re D.L.B., 166 A.3d 322 (Pa.Super. 2017) (addressing challenge to guardian ad litem‘s representation of legal interest even though issue was raised for first time in appellant‘s reply brief). Thus, we address the merits of Mother‘s argument even though she neglected to object to Attorney Graves‘s representation during the family court proceedings.
The crux of Mother‘s argument is that Attorney Graves failed to advocate D.N.G.‘s legal interests beyond informing the family court that D.N.G. did not
In reference to Attorney Graves‘s representation, the family court provided the following summary,
Child was appointed Legal Counsel. Legal Counsel met with Child and had the chance to observe him in the foster home. Child is eleven . . . years . . . old. Child informed Legal Counsel that he has no issues with the foster home or Foster Parent. Child did indicate that he does want to live with his Mother and that he did not want to be adopted.
Trial Court Opinion, 5/21/19, at 23 (citing N.T., 1/17/19, at 209-10)).
Tellingly, during the evidentiary hearing, the family court framed Attorney Graves‘s
We agree with Mother‘s assertion that Attorney Graves‘s advocacy was inadequate. It was Attorney Graves‘s principal obligation as legal counsel to ascertain D.N.G.‘s legal interest and promote it. As is apparent from the family court‘s account and the certified record, Attorney Graves did not represent D.N.G.‘s legal interest beyond advising the court of his client‘s preference. Counsel neglected to present any evidence to support his client‘s legal position, and while he did cross-examine Ashley Wolfe, the CUA case manager, about the agency‘s communications with D.N.G.‘s birth father, N.T., 1/17/19, at 45-46, counsel did not ask any questions relative to his client‘s desire to preserve Mother‘s parental rights. Id. at 123. Moreover, counsel declined to question Mother after DHS presented her testimony as if on cross-examination. Id. at 195.
Furthermore, counsel declined to present any legal argument in his client‘s favor. His total representation of D.N.G.‘s desire to avoid adoption and return to Mother‘s custody was the following exchange with the family court:
The Court: All right. So, what can you report to the Court?
Mr. Graves: I went and visited the child yesterday . . . at the foster mother‘s home at around . . . seven p.m. . . . And he stated to me that he does not have any issues in the foster home. . . . [T]he home is fine.
The Court: Did you discuss if -- if it happens that he cannot be reunified with mom, did you discuss then what?
Mr. Graves: Well, again, he said that, you know, there were no concerns or issues with the foster home or the foster parent and that, you know, he‘d been there for, you know, over two years. And -- however, he, you know, would -- would not like to be adopted. And he would like to go home.
Id. at 209-10.
Thereafter, Attorney Graves summarized his discussion with foster mother, and he informed the court of foster mother‘s preference for adoption over PLC. Tellingly, counsel failed to present PLC to the court as an alternative to adoption, even though that option aligned with his client‘s legal interest. Id. at 210. In fact, Attorney Graves neglected to join or support Mother‘s entreaty for PLC in lieu of the termination of her parental rights. Id. at 217. Similarly, he passed up an opportunity to argue his client‘s legal interest once the guardian ad litem challenged the termination of Mother‘s parental rights and recommended a bonding evaluation. Id. at 216.
Most importantly, Attorney Graves failed to cast the most meaningful legal argument in his arsenal, i.e., the probability that his soon-to-be-twelve-year-old client would refuse to consent to any contemplated adoption.3
Indeed, by terminating parental rights notwithstanding D.N.G.‘s express
In sum, based upon our review of the record, we conclude that Attorney Graves‘s representation did not satisfy the mandate of
Accordingly, we vacate the decree terminating Mother‘s parental rights and remand for a new termination hearing as to Mother. It is left to the family court to decide whether to appoint substitute legal counsel for the hearing or to direct Attorney Graves to zealously advocate his client‘s legal interests.
Order affirmed. Decree terminating parental rights vacated, and matter remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/20