240 A.3d 1218
Pa.2020Background
- Appeals to the Pennsylvania Supreme Court from Superior Court affirmances of McKean County Orphans’ Court decrees approving adoptions and terminating parental rights (Decrees entered Mar. 5, 2018; Superior Court affirmed Sept. 13, 2019). The mother, T.L.G., appealed.
- Justice Dougherty filed a concurring opinion agreeing with the majority but disagreeing with portions of Justice Wecht’s concurring/dissenting opinion.
- Central legal issue: the duties and appropriate review of counsel who represent children (including when counsel also serves as guardian ad litem) in involuntary termination/adoption proceedings — specifically whether appellate courts must sua sponte scrutinize the record to assess how counsel ascertained and advanced a child’s stated preferences.
- Dougherty emphasizes that a child’s right to legal representation is non‑waivable and counsel must attempt to ascertain the child’s position, but he rejects imposing a blanket requirement that appellate courts independently evaluate the adequacy of counsel’s fact‑finding or advocacy absent established standards or rule‑making.
- He warns against treating a child’s expressed preferences as equivalent to the child’s “developmental, physical and emotional needs and welfare” under 23 Pa.C.S. §2511(b), because doing so could shift the burden of proof from the party seeking termination.
- Dougherty reiterates ethical obligations: when counsel (including dual GAL/counsel) learns confidential information creating a conflict between the child’s preferences and the child’s best interests, counsel must disclose the conflict and seek separate appointment; placing some information on the record can be helpful but mandatory, expansive record‑making or sua sponte appellate review is not adopted without rule‑making.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate courts must sua sponte review the record to assess adequacy of child’s counsel in termination proceedings | Wecht: appellate sua sponte scrutiny required to ensure counsel attempted to ascertain and advocate the child’s position | Dougherty: no automatic sua sponte review; no uniform standards; review should not obsess over what counsel did not do | Court (Dougherty concur): rejected expansive sua sponte scrutiny; recognized record-making can be helpful but not mandated absent rule‑making |
| Whether child’s expressed preferences must be folded into the Section 2511(b) “needs and welfare” analysis | Wecht: child’s preferences should be considered within 2511(b) analysis | Dougherty: caution—equating preferences with needs/welfare is legally and practically problematic and would shift burden to non‑moving party | Court (Dougherty concur): refused to equate child preferences with 2511(b) needs/welfare; did not adopt Wecht’s approach |
| Duty when counsel acts in dual role (counsel + GAL) and receives confidential information creating conflict | Some argued counsel may continue if acting for child’s best interests | Dougherty: ethical rules require disclosure of conflicts and, when necessary, motion for separate appointment of counsel/GAL | Held: counsel must not proceed with a concurrent conflict; must inform court and seek separate appointment per Pa.R.P.C.1.7 and Pa.R.J.C.P.1154 |
| Whether counsel must place detailed efforts to ascertain child’s wishes on the record | Wecht: require clearer on‑the‑record showing of counsel’s steps to ascertain child’s position to permit appellate review | Dougherty: placing facts on the record may be helpful in some circumstances but should not be mandated without rule‑making; courts should avoid expansive second‑guessing of advocacy choices | Court (Dougherty concur): endorses helpful practice in some cases but declines to impose a rigid record requirement or expansive appellate review |
Key Cases Cited
- In re K.R., 200 A.3d 969 (Pa. Super. 2018) (discusses duties of counsel for children and need to attempt to ascertain child’s position)
- In re T.S., 192 A.3d 1080 (Pa. 2018) (statutory right to counsel belongs to the child)
- In re T.S.M., 71 A.3d 251 (Pa. 2013) (consideration of parent–child emotional bonds in the child’s needs and welfare analysis)
- In re K.K.R.-S., 958 A.2d 529 (Pa. Super. 2008) (recognition that children may retain positive feelings toward abusive parents)
- In re E.M., 620 A.2d 481 (Pa. 1993) (burden of proof in involuntary termination rests with the party seeking termination)