296 A.3d 1258
Pa. Super. Ct.2023Background:
- Mother (D.B.) had four children adjudicated dependent in July 2019 and DHS sought permanency reviews.
- DHS filed petitions (June 2022) to change permanency goals to adoption and to involuntarily terminate Mother’s parental rights to all four children.
- The trial court had appointed separate TPR legal counsel for the children on January 31, 2022, in addition to a GAL/attorney.
- At the combined TPR and goal-change hearing on November 1, 2022, the court excused (dismissed) the children’s TPR counsel for inattentiveness/phone disruptions and proceeded with the TPR hearing in that counsel’s absence.
- The court entered decrees terminating Mother’s parental rights on November 1; at a December 1 hearing TPR counsel reported children’s preferences and the court changed permanency goals to adoption.
- The Superior Court vacated the termination decrees and remanded for a new TPR hearing, holding the dismissal of the children’s appointed legal counsel was structural error depriving the children of their statutory right to counsel under Section 2313(a).
Issues:
| Issue | Mother’s Argument | DHS/GAL’s Argument | Held |
|---|---|---|---|
| Whether court erred by proceeding with TPR hearing without children’s appointed legal counsel | Trial court violated children’s statutory right to counsel by dismissing TPR counsel; reversal required | One attorney (GAL) can represent both legal and best interests if no conflict; any conflict can be resolved on remand | Reversed and remanded: dismissing children’s TPR counsel was structural error; new TPR hearing required |
| Whether DHS proved statutory grounds for termination under 23 Pa.C.S. § 2511(a) | Mother argued DHS failed to meet clear-and-convincing burden on subsections alleged | DHS argued it met burden (trial court found multiple statutory grounds satisfied) | Not reached on merits due to structural error depriving children of counsel |
| Whether termination was in children’s best interests under § 2511(b) | Mother argued termination not in children’s best interests | DHS argued best-interests standard satisfied; children were placed with kinship caregiver and expressed contentment | Not reached on merits because of counsel deprivation |
| Whether goal change to adoption should be reviewed here | Mother challenged goal change | DHS/GAL responded; DHS sought reinstatement on remand if no conflict found | Not addressed here: goal-change appeals were docketed separately and this Court did not decide them on these TPR appeals |
Key Cases Cited
- In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (Section 2313(a) requires appointment of counsel for a child in contested involuntary TPR proceedings; failure is structural error)
- In re T.S., 192 A.3d 1080 (Pa. 2018) (a GAL may also serve as child’s legal counsel only if no conflict exists between best and legal interests)
- In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020) (trial court must determine on the record whether dual representation by GAL and legal counsel is appropriate)
- In re T.S.M., 71 A.3d 251 (Pa. 2013) (standard of review and deference to trial-court factfinding in TPR cases)
- Interest of D.G., 241 A.3d 1230 (Pa. Super. 2020) (child’s legal counsel must do more than merely report the child’s preference; failure to advocate is reversible error)
- Interest of D.N.G., 230 A.3d 361 (Pa. Super. 2020) (same principle: counsel must zealously advocate the child’s legal interests beyond reporting preference)
- In re P.G.F., 247 A.3d 955 (Pa. 2021) (attorney for a child must, at minimum, attempt to ascertain the child’s preference and advocate for it)
- Interest of A.J.R.O., 270 A.3d 563 (Pa. Super. 2022) (when one attorney represents both roles but the court failed to place a no-conflict determination on the record, remand for limited determination is required)