In Re: Adoption of: A.D.M., A Minor, 156 A.3d 1159

Background

Mother (J.L.P.) had children adjudicated dependent; a court-appointed guardian ad litem (GAL) who was an attorney represented the children in dependency proceedings pursuant to 42 Pa.C.S. § 6311.
CYS filed involuntary termination of parental rights (TPR) petitions after repeated incarcerations and supervision violations by Mother; two TPR hearings occurred and the trial court ultimately terminated Mother's parental rights in the second proceeding.
Mother moved for appointment of independent counsel for the children under 23 Pa.C.S. § 2313(a), arguing the GAL (though an attorney) could have positions adverse to the children’s expressed wishes.
The trial court denied the motion, relying on precedent (In re K.M.) and treating the GAL-attorney as sufficient; the Superior Court affirmed in part; the matter reached the Pennsylvania Supreme Court.
The Pennsylvania Supreme Court held § 2313(a) unambiguously mandates appointment of counsel in contested involuntary TPRs and that a dependency GAL should not serve as the child’s statutory TPR counsel because the roles (child-directed legal advocacy vs. best-interests advocacy) are distinct.
The Court deemed the failure to appoint separate counsel a structural error and remanded for a new TPR proceeding after appointment of counsel; it overruled the portion of In re K.M. to the extent inconsistent.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 23 Pa.C.S. § 2313(a) requires appointment of counsel for children in contested involuntary TPR proceedings	Mother: § 2313(a) uses mandatory "shall" — it requires appointment of counsel who represents the child's legal (client-directed) interests	CYS/GAL: GAL-attorney can adequately advocate; statute permits counsel or GAL in other proceedings and dependency GALs already represent legal interests	Held: § 2313(a) is unambiguous; it mandates appointment of counsel in contested involuntary TPR proceedings
Whether an attorney serving as dependency GAL may serve as the child’s § 2313(a) counsel in TPR proceedings	Mother: dependency GAL often advances best interests and may conflict with child’s wishes; independent counsel is required	GAL/CYS: continuity and efficiency favor the same GAL-attorney serving both roles absent conflict	Held: A dependency GAL should not serve as the child’s TPR counsel because the GAL role (best interests) differs from statutorily mandated counsel (child-directed legal advocacy); dual service risks role confusion and conflicts
Whether failure to appoint counsel in a contested involuntary TPR is subject to harmless-error review	GAL/CYS: any error was harmless	Mother / Juvenile Law Center: denial of counsel is structural error analogous to criminal right to counsel	Held: Denial of mandatory counsel is a structural error not subject to harmless-error analysis; remand for new TPR with appointed counsel required
Precedential effect of In re K.M. (Pa. Super. 2012)	Mother: K.M. wrongly allowed attorney-GAL to substitute for counsel under § 2313(a)	GAL/CYS: K.M. supports treating attorney-GAL as sufficient	Held: K.M. is overruled to the extent it conflicts with this Court’s holding that separate counsel is required in contested involuntary TPRs

Key Cases Cited

Gilbert v. Synagro Cent., LLC, 131 A.3d 1 (Pa. 2015) (standards of statutory interpretation)
Mohamed v. Commonwealth Dep’t of Transp., 40 A.3d 1186 (Pa. 2012) (resort to statutory text when unambiguous)
Chanceford Aviation Props. v. Chanceford Twp. Bd. of Supervisors, 923 A.2d 1099 (Pa. 2007) (interpretation of mandatory "shall")
In re K.M., 53 A.3d 781 (Pa. Super. 2012) (Superior Court held attorney-GAL could satisfy § 2313(a); overruled insofar as inconsistent)
In re Adoption of Hess, 562 A.2d 1375 (Pa. Super. 1989) (purpose of § 2313 is active advocacy for child)
Commonwealth v. Baroni, 827 A.2d 419 (Pa. 2003) (structural error framework)
Commonwealth v. Martin, 5 A.3d 177 (Pa. 2010) (denial of counsel as structural error)