In re T.S.
192 A.3d 1080
| Pa. | 2018Background
- Mother’s parental rights to two young children (ages 2 and 3) were terminated after CYF filed a contested TPR petition based on neglect/substance-use and failure to remedy conditions. The children had been in foster care for an extended period and were placed with foster parents who sought adoption.
- Throughout dependency and the TPR hearing, KidsVoice (an attorney-guardian ad litem) represented the children in a dual role as GAL and as counsel; no separate attorney was appointed solely to represent the children’s legal (preferred-outcome) interests at the TPR hearing.
- At the TPR hearing, evidence supported termination under 23 Pa.C.S. § 2511(a)(2), (5), and (8), and the trial court terminated Mother’s rights under § 2511(b); Mother appealed.
- After the TPR hearing, this Court decided In re Adoption of L.B.M., which interpreted 23 Pa.C.S. § 2313(a) to require appointment of counsel to represent a child’s legal interests in contested TPRs and held that failure to appoint separate counsel can be structural error where a conflict exists between legal and best interests.
- Mother argued on appeal that the trial court erred (structural error) by not appointing separate counsel under § 2313(a); Superior Court affirmed, relying on precedent that an attorney‑GAL may serve both roles where no conflict exists. This Court granted review.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (CYF/GAL) | Held |
|---|---|---|---|
| Waiver of §2313(a) claim | Issue not waived because failure to appoint counsel is structural error and thus not forfeitable | Claim was raised only on appeal; but statute predated L.B.M. so timing immaterial | Claim not waived: child’s statutory right belongs to child; parents cannot waive and no separate counsel existed to raise it at trial |
| Whether an attorney‑GAL may serve as §2313(a) counsel when child is represented in TPR | §2313(a) requires appointment of counsel to represent child’s legal interests; GAL cannot fill both roles in contested TPRs | An attorney‑GAL may represent both legal and best interests when no conflict exists; continuity and resource concerns favor allowing dual role | Where no conflict exists between legal and best interests, an attorney‑GAL may satisfy §2313(a); reaffirmed majority rule from L.B.M. that dual role permissible absent conflict |
| Legal‑interest presumption for non‑communicative (pre‑verbal) children | A pre‑verbal child should be presumed to oppose termination (i.e., legal interest aligned with parent), creating a conflict when GAL favors termination | When a child cannot articulate a preference, there is no ascertainable legal interest to be advanced; presuming an outcome is inadvisable | Rejected presumption. If a child’s wishes cannot be ascertained, there is no conflict between advocating best interests and advancing an unknowable legal preference; GAL may serve both roles in that circumstance |
| Whether failure to appoint separate counsel is always structural and requires remand / whether appellate post‑hoc conflict analysis is permitted | Structural error always; remand required for appointment of counsel and new TPR | Post‑hoc appellate review can determine whether a conflict existed; if none, no structural error occurred | Structural‑error principle applies where trial court erred, but here no error: because children were non‑expressive, no conflict existed and post‑hoc resolution was unnecessary; affirmance of Superior Court decision |
Key Cases Cited
- In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (interpreting 23 Pa.C.S. § 2313(a); held counsel must be appointed to represent child's legal interests and, where conflict exists, failure is structural error)
- In re D.C.D., 105 A.3d 662 (Pa. 2014) (standard of review for termination orders; deference to trial‑court factfinding)
- In re D.L.B., 166 A.3d 322 (Pa. Super. 2017) (held GAL may serve as legal counsel when legal and best interests do not conflict)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (due‑process discussion in parental‑termination proceedings; clear‑and‑convincing evidence required for termination)
- In re Adoption of G.K.T., 75 A.3d 521 (Pa. Super. 2013) (addressing counsel appointment issues in TPR context)