180 A.3d 411
Pa. Super. Ct.2018Background
- Child born in 2012 to Mother and Father; Child was opioid-dependent at birth and placed with Paternal Grandmother after both parents were incarcerated or otherwise unable to care for him.
- Father signed a guardianship agreement in March 2012 and Paternal Grandmother received temporary physical and legal custody by court order in May 2012; Mother did not contest the arrangement while incarcerated (2014–2017).
- Paternal Grandparents filed a petition on Feb. 24, 2017 to involuntarily terminate Mother’s parental rights (Father consented to termination). A hearing occurred May 18, 2017; trial court denied the petition on July 11, 2017.
- On appeal, the Superior Court sua sponte addressed the orphans’ court’s failure to appoint independent counsel for the Child in the contested termination proceeding.
- Majority held failure to appoint counsel was error under 23 Pa.C.S. § 2313(a) and structural in nature; vacated and remanded for proceedings consistent with the opinion. A dissent agreed the error occurred but argued the appellate court lacked authority to raise it sua sponte and would have affirmed on the merits.
Issues
| Issue | Paternal Grandparents' Argument | Mother’s Argument | Held |
|---|---|---|---|
| Whether the orphans’ court erred by failing to appoint separate counsel for the Child in a contested termination | Failure to appoint violated statutory requirement (23 Pa.C.S. § 2313(a)); counsel must be appointed | (Implicit) no timely objection below; merits of termination defeat petition | Majority: court erred; appointment is mandatory and the issue warrants vacatur and remand |
| Whether appellate court may raise the failure to appoint counsel sua sponte | Court should correct the structural statutory error even if not raised by parties | Appellant failed to preserve issue; appellate courts may not normally raise preserved issues sua sponte | Majority: may consider sua sponte and did so; Dissent: appellate court lacked authority to raise it sua sponte and would not have vacated |
| Whether Paternal Grandparents proved statutory grounds for involuntary termination under 23 Pa.C.S. § 2511(a)(1) | Argued Mother abandoned/failed to perform parental duties while incarcerated and thus met § 2511(a)(1) | Trial court found barriers erected by Paternal Grandmother and insufficient clear-and-convincing evidence to satisfy § 2511(a)(1) | Dissent would have affirmed denial on merits (insufficient proof under § 2511(a)(1)); Majority did not resolve merits due to procedural defect |
Key Cases Cited
- In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (failure to appoint counsel for child in contested termination is structural error)
- In re Adoption of G.K.T., 75 A.3d 521 (Pa. Super. 2013) (§ 2313(a) “shall” is mandatory; court must appoint counsel for child)
- Commonwealth v. Martin, 5 A.3d 177 (Pa. 2010) (discussion of structural error concept)
- In re X.J., 105 A.3d 1 (Pa. Super. 2014) (addressing sua sponte appointment-of-counsel issues in appellate review context)
- In re E.F.H., 751 A.2d 1186 (Pa. Super. 2000) (recognizing child’s unique position and need for counsel to raise appointment error)
- In re Adoption of N.A.G., 471 A.2d 871 (Pa. Super. 1984) (statutory right to counsel for child and consequences of failing to appoint)