192 A.3d 1201
Pa. Super. Ct.2018Background
- Mother and Father divorced; Father had primary physical custody and Mother partial custody. Mother last saw the children in Sept. 2016 and was incarcerated thereafter; she had no contact with the children from Sept. 2016 through May 2017.
- Father married Stepmother; Petitioners (Father and Stepmother) and children lived together. Petitioners filed involuntary termination petitions on May 1, 2017 after seven months of no contact from Mother.
- The Orphans’ Court held a termination hearing on Nov. 3, 2017 and directed post-hearing letter briefs; the court entered an order terminating Mother’s parental rights on Jan. 16, 2018.
- Children were appointed counsel (Attorney Kubista) as legal-interests counsel; counsel cross-examined witnesses but did not place children’s preferred outcomes on the record at the hearing, and her letter brief is not in the certified record.
- The record included counsel’s appellate brief summarizing interviews with the children but not stating their expressed preferred outcomes; the court’s summary likewise described the children’s relationship with Stepmother but did not state any explicit preferred outcomes.
- The Superior Court concluded the record does not show that counsel ascertained or advocated the children’s legal (preferred) interests, so it vacated the termination order without prejudice and remanded for counsel to interview the children and either confirm the prior result or prompt a new hearing.
Issues
| Issue | Petitioners' Argument | Mother’s Argument | Held |
|---|---|---|---|
| Whether children were afforded counsel representing their legal interests in the involuntary termination proceeding | Counsel satisfied duties; children’s needs/wishes aligned with termination | Counsel failed to ascertain or present children’s preferred outcomes; deprivation of statutory right to legal-interests counsel | Vacated termination order and remanded for counsel to discern children’s legal interests and notify court; new hearing required if children’s preferences conflict with prior result |
| Scope of counsel’s duty when appointed as legal-interests counsel for minor children | Counsel may focus on best interests where child too young to direct | Counsel must attempt to ascertain child’s preferred outcome and follow child-directed instructions to the extent possible | Counsel must attempt to elicit children’s preferences and advocate those legal interests regardless of counsel’s view of best interests |
| Whether current counsel should be replaced on remand | Petitioners implicitly: retain counsel who has knowledge of case and interviewed children | Mother: prior proceedings defective; replacement may be required | Court kept open possibility of same counsel; replacement unnecessary if counsel can fulfill obligations, but appoint new counsel if unable/unwilling |
| Handling conflicting preferences between siblings | Not addressed in detail by parties | If conflicts exist, separate counsel should be appointed | If children have divergent preferred outcomes, court must appoint separate counsel for each child |
Key Cases Cited
- In re Adoption of G.K.T., 75 A.3d 521 (Pa. Super. 2013) (appointment of counsel for child in contested termination is mandatory)
- In re E.F.H., 751 A.2d 1186 (Pa. Super. 2000) (statutory right to appointed counsel who advances child’s needs and owes loyalty to child)
- In re N.A.G., 471 A.2d 871 (Pa. Super. 1984) (23 Pa.C.S. § 2313(a) creates right to counsel for child)
- In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (distinguishing child’s legal interests from best interests; counsel must be directed by child)
- In re D.L.B., 166 A.3d 322 (Pa. Super. 2017) (distinguishing guardian ad litem from legal-interests counsel)
- In re K.J.H., 180 A.3d 411 (Pa. Super. 2018) (court must raise failure to appoint statutorily-required counsel sua sponte)