230 A.3d 361
Pa. Super. Ct.2020Background
- DHS became involved in 2014 after reports of neglect (truancy, lack of supervision, unmet mental-health needs); child D.N.G. was adjudicated dependent in Nov. 2016 and removed to foster care ~20 days later.
- Over ~15 months of services, Mother made only intermittent compliance; DHS filed petitions in March 2018 to terminate parental rights and change permanency goal to adoption.
- At the combined permanency/termination trial (Jan. 17, 2019), the court appointed counsel for the child (Michael Graves) under 23 Pa.C.S. § 2313(a); the guardian ad litem opposed termination and requested a bonding evaluation.
- Child (age 11 at trial) told appointed counsel he wanted to return to Mother and did not want to be adopted; counsel reported that preference to the court but presented no evidence, witnesses, or legal argument (including failing to press permanent legal custody as an alternative).
- The family court granted DHS’s petitions, changed the goal to adoption, and terminated Mother’s parental rights under 23 Pa.C.S. § 2511(a)(1), (2) and (b). On appeal, the Superior Court vacated the termination and remanded for a new termination hearing because the child was deprived of meaningful client-directed legal representation.
Issues
| Issue | Mother’s Argument | DHS’s Argument | Held |
|---|---|---|---|
| Adequacy of child’s §2313(a) counsel | Counsel only reported child’s preference and failed to zealously advocate or present evidence/witnesses | Appointment and reporting of child’s preference satisfied §2313(a) | Counsel’s representation was inadequate; vacated termination and remanded for new hearing or new counsel to advocate the child’s legal interest |
| Proof of statutory grounds for termination (§2511(a)/(b)) | DHS failed to prove grounds by clear and convincing evidence | Record supports termination under §2511(a)(1),(2) and (b) | Superior Court did not affirm termination on the merits; vacated due to counsel deficiency and remanded for further proceedings |
| Child’s preference and potential refusal to consent to adoption (age-related consent) | Child opposed adoption; counsel should have argued likelihood child would refuse adoption upon turning 12 (which would block adoption) | Not raised by DHS as requiring additional argument; appointment alone sufficed | Court faulted counsel for failing to press the child-consent issue as a dispositive, client-directed argument |
| Denial of bonding evaluation / PLC alternative | GAL recommended bonding evaluation; Mother sought permanent legal custody (PLC) instead of termination | Court permitted adoption goal and termination; DHS maintained termination was appropriate | Court criticized counsel and court’s narrow view of counsel duties; ordered remand so child’s legal interest (including PLC alternative) can be properly advanced |
Key Cases Cited
- In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality) (§2313(a) requires appointment of client-directed counsel to protect child’s legal interests)
- In re T.S., 192 A.3d 1080 (Pa. 2018) (court must ensure child’s subjective, articulable preference is identified and advanced by counsel)
- In re Adoption of K.M.G., 219 A.3d 662 (Pa. Super. 2019) (en banc) (party has standing to raise adequacy of §2313(a) representation on appeal; Superior Court may review record)
- In re Adoption of N.A.G., 471 A.2d 871 (Pa. Super. 1984) (statutory appointment of counsel aims to advance children’s needs and welfare)
- In re Adoption of L.J.B., 18 A.3d 1098 (Pa. Super. 2011) (purpose of involuntary termination is to remove need for parental consent when parent fails to meet child’s continuing needs)