219 A.3d 662
Pa. Super. Ct.2019Background
- Mother (T.L.G.) appealed decrees involuntarily terminating her parental rights to four children; appeals were consolidated and the Superior Court granted en banc review to address GAL conflict issues.
- Children had been placed in kinship care after CYS intervention for unresolved medical/dental needs, chronic lice, school nonattendance, and a sexual assault by a paramour’s child.
- Mother continued cohabitation with a Tier II registered sex offender (her paramour), risking subsidized housing and exposing the children to danger.
- The orphans’ court appointed the dependency GAL to serve at the termination hearing, gave parties an opportunity to object to dual representation, and none objected.
- The orphans’ court terminated Mother’s rights under 23 Pa.C.S. § 2511(a)(2) and (b); the Superior Court affirmed and clarified appellate authority on sua sponte review of GAL conflicts, overruling In re Adoption of T.M.L.M.
Issues
| Issue | Mother’s Argument | CYS/Orphans’ Court Argument | Held |
|---|---|---|---|
| Whether Superior Court must sua sponte review for an undisclosed GAL conflict in every involuntary termination appeal | Superior Court should independently review GAL conflicts to protect the child’s right to conflict-free representation | Appellate court has no authority to probe quality/conflict of GAL representation sua sponte absent failure to appoint counsel | No—Superior Court may not sua sponte investigate GAL conflicts; overruled T.M.L.M.; only may raise sua sponte failure to appoint any counsel (K.J.H. governs) |
| Standard of review when a party properly raises a GAL conflict before the orphans’ court | Mother urged de novo or plenary appellate review | Orphans’ court urged deferential review of factual findings | Deferential: factual findings/credibility get great deference; review for abuse of discretion or legal error |
| If conflict is raised for the first time on appeal, must Superior Court remand or decide from the record? | Mother argued remand is required to develop facts | CYS argued appellate court can decide when the record is clear | Appellate court should examine the certified record; if record clearly and undisputedly shows child’s subjective preference and divergence from best interest, it may decide; otherwise remand |
| What should orphans’ courts consider/do when determining whether a GAL has a conflict (child’s preference vs best interest)? | Mother urged direct, routine questioning of the child to elicit preference | Orphans’ court/CYS urged reliance on GAL’s inquiry and other evidence; question child only if necessary | Best practices: confirm whether GAL spoke with child; permit parties to present evidence of conflict; question child only if necessary and in least intrusive manner (or use a treating mental‑health provider’s testimony) |
| Merits: whether termination under §2511(a)(2) and (b) was proper | Mother argued substantial compliance with the reunification plan, poverty/external factors caused deficits, and severing the bond was harmful | CYS showed Mother’s continued incapacity (unaddressed medical/dental needs, inconsistent visits, unsafe living with sex offender), services provided, and improved stability in kinship care | Affirmed: clear and convincing evidence supports termination under §2511(a)(2) and (b) — Mother failed to remedy incapacity; children’s needs best served by termination |
Key Cases Cited
- In re Adoption of T.M.L.M., 184 A.3d 585 (Pa. Super. 2018) (panel had sua sponte reviewed GAL conflict; Superior Court overruled that approach)
- In re K.J.H., 180 A.3d 411 (Pa. Super. 2018) (appellate court may raise sua sponte the trial court’s failure to appoint any counsel at termination)
- In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (Supreme Court guidance on counsel vs GAL representation in termination proceedings)
- In re T.S., 192 A.3d 1080 (Pa. 2018) (standards for representation/conflict and appellate review in termination cases)
- In re T.S.M., 71 A.3d 251 (Pa. 2013) (standard of review for termination orders: accept supported factual findings; assess abuse of discretion)
- In re Adoption of C.D.R., 111 A.3d 1212 (Pa. Super. 2015) (elements of §2511(a)(2) termination)
- In re Z.P., 994 A.2d 1108 (Pa. Super. 2010) (parental incapacity that cannot be remedied can justify termination)
- In re K.Z.S., 946 A.2d 753 (Pa. Super. 2008) (court may emphasize child safety needs in §2511(b) analysis)
- In re Angeles Roca First Judicial Dist. Philadelphia Cty., 173 A.3d 1176 (Pa. 2017) (jurisdictional issues may be raised sua sponte)