IN RE: ADOPTION OF: L.B.M., a Minor; In re: Adoption of: A.D.M., a Minor
No. 84 MAP 2016, No. 85 MAP 2016
Supreme Court of Pennsylvania
March 28, 2017
161 A.3d 172
ARGUED: December 6, 2016
Howard Greeley Hopkirk, Esq., Kenneth Lawson Joel, Esq., Nicole Jeanne Radziewicz, Esq., Pennsylvania Office of Attorney General, Kathleen Marie Kotula, Esq., Pennsylvania Department of State, Joshua D. Shapiro, Esq., for Appellees.
ORDER
PER CURIAM
AND NOW, this 3rd day of March, 2017, the order of the Commonwealth Court is AFFIRMED.
Opinion to follow.
Justices Donohue, Dougherty and Wecht dissent.
Kristin Diller Nicklas, Esq., Nicklas Law Offices, for J.P., Appellant.
Kristen B. Hamilton, Esq., Stiltner, Taccino & Hamilton, for Guardian Ad Litem, Appellee.
Theresa M. Yaukey, Esq., MidPenn Legal Services, for Franklin County Children and Youth Services, Appellee.
Marsha Levick, Esq., Riya Saha Shah, Esq., Lisa Bolotin Swaminathan, Esq., Juvenile Law Center, for Juvenile Law Center, ACLU of PA, Community Legal Srvs., National Assoc. of Counsel for Children, et al., Amicus Curiae.
Kevin Lewis Quisenberry, Esq., Community Justice Project, for Community Justice Project, Amicus Curiae.
Benjamin Nelson Zuckerman, Esq., Juvenile Court Project, for Juvenile Court Project, Amicus Curiae.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
Justice Wecht delivers the Opinion of the Court with respect to Part I, Part II(A), and Part II(C), and announces the judgment of the Court. The opinion is joined in full by Justices Donohue and Dougherty. Chief Justice Saylor and Justice Todd join the opinion, except with respect to Part II(B), and the Chief Justice files a concurring opinion, joined by Justice Todd. Justices Baer and Mundy file separate dissenting opinions, which they each cross-join.
OPINION
JUSTICE WECHT
This case requires us to determine whether
I. Background
At the outset, we define the terms that provide the backdrop for our resolution of this issue. In cases involving children, the law acknowledges two separate and distinct categories of interest: a child‘s legal interests, which are synonymous with the child‘s preferred outcome, and a child‘s best interests,2 which the trial court must determine.3 While the best interests determination
either an attorney or mental health professional.
In dependency cases where the trial court is required to appoint a GAL, the GAL must be an attorney.
By contrast to this statutory authorization for a GAL in dependency proceedings, Section 2313(a) of Title 23 prescribes a different scheme for the representation of children in termination of parental rights and adoption cases.
(a) Child.—The court shall appoint counsel to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents. The court may appoint counsel or a guardian ad litem to represent any child who has not reached the age of 18 years and is subject to any other proceeding under this part whenever it is in the best interests of the child. No attorney or law firm shall represent both the child and the adopting parent or parents.
With this legal framework in mind, we turn to the facts of today‘s case. J.L.P. (“Mother“) and J.D.M. (“Father“) are the parents of A.D.M. (born March 2007) and L.B.M. (born May 2011). On July 2, 2013, Franklin County Children and Youth Services (“CYS“) conducted a home visit with Mother. The visit was prompted by a referral аlleging that Mother was on the verge of becoming homeless. The next day, Mother contacted CYS seeking to place the children due to her unstable living conditions. At the time, Father was incarcerated. That same day, the trial court
On August 13, 2013, Mother pleaded guilty to possession of drug paraphernalia and was sentenced to twelve months of probation.6 Thereafter, Mother was incarcerated, mostly due to probation violations, from July 5, 2013 to October 2, 2013, October 24, 2013 to November 6, 2013, December 12, 2013 to April 24, 2014, and May 5, 2014 to June 20, 2014.
On August 6, 2014, following Mother‘s repeated periods of incarceration, CYS filed a TPR petition. On November 25, 2014, after two hearings, the trial court issued findings of fact and a decree. The trial court declined to terminate Mother‘s parental rights, finding that Mother, while only recently released from jail, had obtained both housing and employment. Decree, 11/25/2014, at 8, 14-16. Further, Mother had attended almost all of her available visits with the children and had engaged and bonded with them. Id. at 8-9, 18. The court expressed “grave concerns” about the effect that severance of the relationship would have on A.D.M., who was “extremely close” with Mother. Id. at 19. The testimony reflected that A.D.M. “desperately want[ed] to be with his mother.” Notes of Testimony (“N.T.“), 10/3/2014, at 60; see also N.T., 10/24/2014, at 38.
Following the first TPR hearing, Mother made significant progress, and the children were scheduled to be reunited with her. However, while reunification was pending, L.B.M. returned from a weekend visit with Mother with bruises on his neck and chest. Although the bruises were suspected to be non-accidental, an investigation did not reveal their cause. Ultimately, the trial court delayed reunification in order to permit A.D.M. to finish the school year. Shortly thereafter, it was discovered that Mother had again violated her probation by living apart from her approved residence. Mother was reincarcerated. While in jail, Mother participated in visits with the children until her privileges were suspended after she tested positive for suboxone.
On August 4, 2015, the GAL filed a second TPR petition, citing both Mother‘s re-incarceration and the cancellation of her visitation privileges. On August 28, 2015, Mother filed a motion requesting the appointment of counsel for the children, citing Section 2313(a). Mother noted that the GAL‘s position “may be adverse to the [children‘s] position,” and accordingly averred the necessity of independent counsel. Motion to Appoint Counsel for the Child, 8/28/2015, at 1.
On September 9, 2015, the trial court denied Mother‘s motion. In its order, the trial сourt chose simply to skip over the first sentence of Section 2313(a) (which mandates counsel in contested TPR cases) in favor of that provision‘s second sentence, which “gives this Court the discretion to appoint counsel or a GAL to represent any child who has not reached 18 years and is subject to any other proceeding under this part whenever it is in the best interests of the child.” Order, 9/9/2015
The trial court held hearings on the TPR petition. At the start of the proceedings, the trial judge interviewed A.D.M. A.D.M. was equivocal about his desire to be reunited with Mother. He testified that he knew that Mother cared about him, but that he nonetheless was disappointed by her inability to maintain sobriety. He further stated that he probably would choose his foster family. N.T., 9/15/2015, at 10-11. A.D.M. expressed his desire for a final decision and his wish that, regardless of the outcome, he be allowed to maintain contact with both Mother (and her family) and his foster family. Id. at 17-18, 154. A.D.M.‘s permanency worker testified that A.D.M.‘s “first wish is always going to be with his mom.” Id. at 161. The trial court recognized that A.D.M.‘s bond with Mother was much stronger than L.B.M.‘s, and that A.D.M. would be affected adversely by the termination. However, the trial court found that A.D.M. also had a strong bond with his foster parents, and that it was in A.D.M.‘s best interests to sever the bond with Mother becausе his most important need was permanency. See id. at 17-18 (A.D.M. testifying that he just wanted a decision).
The trial court filed its findings of fact and decree on September 25, 2015. By that decree, the trial court terminated Mother‘s parental rights, finding that Mother had not remedied the conditions leading to the children‘s placement. In assessing the children‘s best interests, the court found that L.B.M.‘s primary bond was with his foster parents, whom he considered to be his parents, although L.B.M. did have some bond with Mother. Decree, 9/25/2015, at 13.
Mother filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to
In support of its decision to deny Mother‘s motion, the trial court relied upon In re K.M., 53 A.3d 781 (Pa. Super. 2012), in which the Superior Court held that Section 2313(a) did not require appointment of an attorney when a GAL, who was an attorney, had been appointed. Trial Court Opinion, 12/7/2015, at 22-24. In K.M., 53 A.3d at 783-84, the Superior Court addressed a TPR determination involving a three-year-old child who had never been in the parents’ care. K.M., 53 A.3d at 783-84. The trial court elected not to appoint counsel for the child pursuant to Section 2313(a), although a GAL, who was an attorney, had been appointed. Id. at 786. The mother appealed this decision. The Superior Court identified the purpose of the section as “protect[ing] the interests of the child. Implicit in this appointment of counsel is a recognition that the interests of the child may be very different than or diverge from the interests of the other parties....” Id. at 787.
The Superior Court concluded that Section 2313(a)‘s requirements were not clear and unambiguous as applied to circumstances when the appointed GAL was an attorney. Even though the second sentence of the statute did not apply to the case, the Superior Court opined that the use in that sentence of the disjunctive “counsel or guardian ad litem” indicated that the legislature deemed “it would be superfluous to appoint both counsel and an attorney serving as guardian ad litem” in most cases. Id. Further, the K.M. court relied upon the comment to Section 2313(a), noting
Based upon K.M.‘s reasoning, the trial court here decided that it was not required to appoint counsel other than the GAL.8 A divided panel of the Superior Court affirmed upon
the basis of the trial court‘s opinion. In re: Adoption of L.B.M., 1834 MDA 2015, 2016 WL 3080124 аt *6 (Pa. Super. May 31, 2016) (unpublished). In dissent, Judge Strassburger opined that K.M. was distinguishable because of A.D.M.‘s age (eight at the time of the hearing) and because of A.D.M.‘s expressed wish to return to Mother, a wish which conflicted with the GAL‘s position. Id. at *33-34 (Strassburger, J., dissenting). Judge Strassburger also observed that Section 2313(a) “suggest[ed] that the legislature intended to differentiate between legal counsel and GAL in TPR proceedings.” Id. at *34.
Presently, Mother argues that K.M. was wrongly decided. Brief for Mother at 7. Mother contends that the second sentence of Section 2313(a), upon which the K.M. Court relied, does not apply to contested involuntary TPR hearings and is thus irrelevant to the case. If anything, Mother contends, the second sentence proves that the General Assembly recognized the distinct roles that a GAL and an attorney play. Accordingly, Mother argues that the use of the term counsel in the first sentence means a “client-directed” attorney who represents the child‘s legal interests and not a GAL who happens to be an attorney and seeks to vindicate the child‘s best interests. Id. at 8.9
The GAL argues that, although Section 2313(a)‘s purpose is “to ensure that the needs and welfare of a child will be actively advanced by an advocate who owes loyalty only to the child,” a GAL, representing the child‘s best interests, is able to advocate for the child. Brief for GAL at 22 (quoting In re Adoption of G.K.T., 75 A.3d 521, 527 (Pa. Super. 2013)).
GAL asserts that the age and development of a child may make it impossible for an attorney to be cliеnt-directed. The GAL contends that, since the GAL often has represented the child‘s best and legal interests pursuant to the Juvenile Rules in dependency, that dual role should continue through the termination process. Id. at 23.
CYS also argues that, because Section 6311 contemplates the GAL‘s advocacy on behalf of both the best interests and the legal interests of the child in dependency cases, it would be inefficient not to extend that dual role into and through TPR proceedings.
II. Analysis
A. Appointment of Counsel
Because our resolution of this issue necessarily requires us to interpret Section 2313(a), our standard of review is de novo. Gilbert v. Synagro Cent., LLC, 634 Pa. 651, 131 A.3d 1, 10 (2015).
The purpose of statutory interpretation is to ascertain the General Assembly‘s intent and give it effect.
ascertain its meaning. See
Mohamed v. Commonwealth, Dep‘t of Transp., Bureau of Motor Vehicles, 615 Pa. 6, 40 A.3d 1186, 1193 (2012) (citation modified).
The language of Section 2313(a) at issue in this contested TPR case reads, in pertinent part, “The court shall appoint counsel to represent the child ....” “The word ‘shall’ by definition is mandatory and it is generally applied as such.” Chanceford Aviation Props., L.L.P. v. Chanceford Twp. Bd. of Supervisors, 592 Pa. 100, 923 A.2d 1099, 1104 (2007) (citation omitted). When a statute is unambiguous, “shall” must be construed as mandatory. Id. Here, the use of “shall” is unambiguous and hence, mandatory. The statutory language does not suggest anything other than the general meaning of the word. By contrast, the statute‘s second sentence uses the term “may” in connection with “any other proceeding” (i.e., anything other than a contested TPR) evidencing the fact that our General Assembly knows well how to use non-mandatory language when it wishes to do so. The lawmakers codified a mandatory appointment of counsel for contested TPR cases, and, in the very next sentence, codified a discretionary provision for other proceedings.11 There is no ambiguity
As well, it bears noting that the recognized purpose of the statute is to ensure that the needs and welfare of the
children involved are actively advanced.12 To hold otherwise would аfford courts the discretion to deny counsel to children involved in contested TPR proceedings, which not only would disserve the purpose of the statute, but also would contradict its express terms.
“Counsel” also is clear and unambiguous. The second sentence of the statute is instructive, inasmuch as it demonstrates that the legislature recognized and understood the difference between counsel and a GAL. In cases other than involuntary (i.e., contested) TPRs, the General Assembly has instructed that either counsel or a GAL adequately can represent the child‘s interests. However, when a child‘s relationship with his or her birth family could be severed permanently and against the wishes of the parents, the legislature made the policy judgment, as is evident from the plain, unambiguous language of the statute, that a lawyer who represents the child‘s legal interests, and who is directed by the child, is a necessity. It is not our role to second-guess the policy choice made and expressed by the General Assembly. Nor is the legislative choice surprising; appointment of client-directed counsel optimizes the protection of the child‘s needs and welfare, which form the ultimate issue that the trial court must resolve before granting the TPR. Because the statute is clear and unambiguous, and because the application of the plain language gives effect to the General Assembly‘s intent,
we hold that Section 2313(a) requires the appointment of counsel who serves the child‘s legal interests in contested, involuntary TPR proceedings.13
B. Service of GAL as Counsel
Having determined that the court must appoint counsel to represent the child‘s legal interest, we next consider whether a GAL may serve in that role. Because the GAL is familiar with the case and has represented the child‘s legal interests in the dependency case to the extent permitted
those involved—the court, the lawyers, the parties, the agencies—would have to be clear about the distinction between the roles: to wit, that the GAL advocates for the child‘s best interests while counsel advocates for the child‘s legal interests. That change in roles, and the subtle yet important distinction between those roles, has the potential to breed confusion for the child as well as other parties. Second, the dependency proceedings generally remain ongoing when the TPR petition is filed and may well continue, as they indeed did here, in the event that the petition is denied. To permit the dependency GAL to serve also as the TPR counsel while proceedings in each matter are ongoing increases the risk of confusion and may force the attorney to take conflicting stances in the proceedings depending on the role being performed at the time. These concerns argue against the GAL serving additionally in the distinct role of TPR counsel.
We recognize that providing a new attorney as counsel for the child carries a cost. In addition to an appointed counsel‘s fee, there may be delays while counsel prepares for the TPR proceedings and interviews the child and any other parties or witnesses. In some cases, the child may be too young to express his or her wishes. In other cases, as CYS notes, an attorney, guided by Pa.R.P.C. 1.7 (Conflicts of Interest), may determine that he or she ethically cannot represent multiple children in a family because the children‘s legal interests diverge. However, the language of Section 2313(a) is clear. The General Assembly has made the рolicy decision that these are the costs of ensuring that a child is represented adequately during a contested, involuntary TPR proceeding. Recognizing the legislative will, and in view of the risks posed by dual representation with conflicting obligations, the dependency GAL should not be employed as the child‘s counsel in TPR proceedings.15
C. Treatment of Error
Having found that the trial court erred, we must next determine the effect of that error. The GAL suggests that, if error, the failure to appoint counsel was harmless. Brief for GAL at 43-44. CYS concurs. Brief for CYS at 36. Mother does not address the issue directly. She asserts merely that the error justifies a new hearing. Brief fоr Mother at 15.
The most developed treatment of the issue lies in the amicus curiae brief submitted jointly by the Juvenile Law Center, the American Civil Liberties Union of Pennsylvania, Community Legal Services, Inc., the National Association of Counsel for Children, the National Coalition for a Civil Right to Counsel, and the Pennsylvania Legal Aid Network (hereinafter, collectively, “Juvenile Law Center“). The Juvenile Law Center notes that, in criminal proceedings, denial of counsel is deemed a structural error, requiring reversal without the need to demonstrate prejudice. Id. at 27-28. The Juvenile Law Center asserts that courts generally have extended other criminal law protections to TPR cases because of the importance of the right involved in termination, and maintains that we should deem the failure to appoint counsel a structural error. Id. at 28-29. The rationale for structural error‘s applicability to criminal cases applies equally to TPR cases, according to the Juvenile Law Center. To wit, it is impossible to determine the effect that counsel who was not present would have had and to attempt to gauge the harmfulness of the failure to appoint counsel.16 To do so would be an exercise in speculation. Id. at 30-31. Further, the absence of counsel “calls into question the very structural integrity of the fact-finding process.” Id. at 31-32 (quoting In re J.M.B., 296 Ga.App. 786, 676 S.E.2d 9, 12 (2009)). For these reasons,
A structural error is defined as one that affects “the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Commonwealth v. Baroni, 573 Pa. 589, 827 A.2d 419, 420 (2003) (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Structural errors are not subject to harmless error analysis. Id. Generally, denial of counsel is a structural error, see Commonwealth v. Martin, 607 Pa. 165, 5 A.3d 177, 192 (2010); although such error usually stems from deprivation of a constitutional right to counsel. Here, by contrast, the right to counsel is statutory. Nonetheless, we do not find that distinction to be determinative. The same concerns are evident
regardless of the derivation of the right. Whether the right to counsel is conferred by constitution or statute, the right having been conferred must be protected.
In criminal and TPR cases alike, critical rights are at stake. With respect to the former, the framers of our Constitutions, and the courts interpreting those charters, have determined that counsel was required to ensure that liberty interests and process rights are protected. With respect to the latter, our General Assembly has decided that counsel for the child is required because of the primacy of children‘s welfare, the fundamental nature of the parent-child relationship and the permanency of termination. The legislature has codified a process that affords a full and fair opportunity for all of the affected parties to be heard and to participate in a TPR proceeding. The denial of mandated counsel compromises the framework of the proceedings and constitutes a structurаl error. Further, as suggested by the Juvenile Law Center, harmless error analysis would require speculation after the fact to evaluate the effect of the lack of appointed counsel, effectively requiring proof of a negative. For all of these reasons, we hold that the failure to appoint counsel for a child involved in a contested, involuntary termination of parental rights proceeding is a structural error and is not subject to harmless error analysis.
Because the trial court erred in failing to appoint counsel for the children, and because that error is structural, we remand for a new TPR proceeding following the appointment of counsel. To the extent that K.M. does not align with the majority portion of today‘s opinion, that decision was erroneous and is overruled. Because of the remand, we need not reach, and we express no opinion regarding, Mother‘s challenge to the trial court‘s finding on the merits that Mother‘s parental rights should be terminated.
Justices Donohue and Dougherty join the opinion.
Chief Justice Saylor joins Part I, Part II(A) and Part II(C) of the opinion and authors a concurring opinion.
Justice Todd joins Part I, Part II(A) and Part II(C) of the opinion and joins the concurring opinion authored by Chief Justice Saylor.
Justice Baer files a dissenting opinion in which Justice Mundy joins.
Justice Mundy files a dissenting opinion in which Justice Baer joins.
CHIEF JUSTICE SAYLOR, concurring
I join Parts I and II(A) and (C) of the main opinion. Howеver, I respectfully disagree with the plurality decision, in Part II(B), that a guardian ad litem may never serve as counsel, as I believe such a rigid rule is not required by either the language
...
Although the main opinion indicates that “the language of Section 2313(a) ... clear[ly]” supports its holding in this respect, Opinion, at 443, 161 A.3d at 181, in my view, that provision reflects only that a court must appoint counsel in termination proceedings; it is silent on who may or may not serve in that role. A contextual reading of the passage is similarly not dispositive. The plurality aptly explains that the statutory scheme evinces the Legislature‘s intent to distinguish between the respective roles of counsel, whose duty is to further the child‘s legal interests, and a guardian ad litem, whose obligation is to advance the child‘s best interests. It does not follow, however, that the General Assembly intended to categorically proscribe a guardian ad litem from serving as counsel.1
In my view, the propriety of permitting the same individual to serve in both capacities should be determined on a case-by-
case basis, subject to the familiar and well-settled conflict of interest analysis. Thus, where zealous representation is made impossible because of an attorney‘s duties as guardian ad litem—or, for that matter, any other reason—the court must refrain from making the appointment and should find a suitable candidate. Conversely, in the absence of an actual or potential conflict between a child‘s legal and best interests, I see no reason why a guardian ad litem may not also serve as counsel. There are multiple scenarios in which a child‘s legal and best interests may be indistinguishable, including, most notably, cases involving children who are too young to express their wishes. In such circumstances, mandating the appointment of separate counsel seems superfluous and potentially wasteful.2
Here, as the main opinion explains, in permitting the termination to proceed with the guardian ad litem as the only attorney representing the children, the trial court understood the appointment of counsel to be optional, rather than mandatory. Accordingly, as it did not recognize the discrete functions of counsel and guardians ad litem, it could not have conducted the requisite conflict of interest analysis. As such, I agree with the characterization of
In sum, while I agree that the court must appoint counsel who will advocate for the child‘s legal interests, I find a per se and best interests to be relevant, let alone dispositive. See Opinion, at 442 n.13, 161 A.3d at 180 n.13. prohibition on permitting a guardian ad litem to serve as counsel to be overly restrictive.
Justice Todd joins this concurring opinion.
JUSTICE BAER, dissenting
I join Justice Mundy‘s dissenting opinion. I write separately to explain my reasoning and to set forth a recommended course of action for trial courts.
As has been noted, this case requires our interpretation of Section 2313(a) of the Adoption Act:
§ 2313. Representation
(a) Child.—The court shall appoint counsel to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents. The court may appoint counsel or a guardian ad litem to represent any child who has not reached the age of 18 years and is subject to any other proceeding under this part whenever it is in the best interests of the child. No attorney or law firm shall represent both the child and the adopting parent or parents.
Notably, the first sentence of Section 2313(a) is silent as to whether the appointed counsel may be the same individual who serves as the GAL Attorney in the dependency proceedings. I agree with Justice Mundy that the second sentence of Section 2313 does not answer this question as it instead addresses the child‘s representation in “any other proceedings” under the Adoption Act other than a contested termination proceeding, which is addressed by the first sentence of the section.
Section 2313(a)‘s differentiation of the representation requirements is understandable given the significance to the child and finality of the termination of parental rights. While the General Assembly mandates in the first sentence of Section 2313(a) that a child be represented by counsel in a contested termination proceeding, the second sentence of the provision allows, but does not require, representation by either counsel or a GAL (who does not have to be an attorney under the Adoption Act) in other proceedings such as uncontested adoption proceedings. The fact that a GAL may be appointed in other proceedings, however, does not address whether a GAL Attorney may satisfy the requirement that counsel be appointed for purposes of the first sentence addressing a contested termination of parental rights proceeding.
While the Adoption Act does not speak to whether a GAL Attorney can serve as the appointed counsel under Section
Significantly, Subparagraph 6311(b)(9), in its original form, imposes on the GAL Attorney the following duty in regard to the child‘s legal interest:
(9) Advise the court of the child‘s wishes to the extent that they can be ascertained and present to the court whatever evidence exists to support the child‘s wishes. When appropriate because of the age or mental and emotional condition of the child, determine to the fullest extent possible the wishes of the child and communicate this information to the court. A difference between the child‘s wishes under this paragraph and the recommendations under parаgraph (7) [addressing recommendations for the child‘s placement and necessary services] shall not be considered a conflict of interest for the guardian ad litem.
Notably, this Court suspended the italicized last sentence of Section 6311(b)(9) countenancing a conflict of interest between the child‘s wishes and the GAL Attorney‘s best interest recommendations pursuant to Pennsylvania Rule of Juvenile
In place of the final sentence, the comment to Rule 1154 provides, “If there is a conflict of interest between the duties of the guardian ad litem pursuant to paragraphs (7) and (9), the guаrdian ad litem for the child may move the court for appointment as legal counsel and assignment of a separate guardian ad litem ....” Pa.R.J.C.P. 1154, cmt.5 It further explains that “If there is not a conflict of interest, the guardian ad litem represents the legal interests and best interests of the child at every stage of the proceedings.
I see no obstacle to this system of representation being applied for purposes of a
Indeed, reading the representation provisions consistently allows the child to have continuity of representation between the dependency and termination proceedings.6 As in the dependency proceedings, if a conflict of interest exists between the child‘s best and legal interests, the GAL Attorney, who is subject to the Rules of Professional Conduct, must move for the appointment of a separate individual to allow separate representation of the best interests and legal interests. See Pa.R.P.C. 1.7. As I conclude that no universal disqualifying impediment exists to prevent a dependency proceeding GAL Attorney from continuing to represent the child‘s legal and best interests in a termination proceeding, I concur with Justice Mundy in holding that the trial court did not err in refusing to appoint a new individual as counsel.
Nevertheless, I am troubled that an affirmance of the trial court‘s denial of the motion to appoint counsel could be misconstrued as not requiring the appointment of counsel in contested termination proceedings. Indeed, I agree that lack of counsel for the child would result in a structural error in a termination proceeding. As such, it would be a better practice fоr courts in every contested termination proceeding to place an order on the record formalizing the appointment of counsel to highlight for all parties the responsibility for the representation of the child‘s legal interests, while simultaneously permitting that attorney to serve as the child‘s GAL so long as there is no conflict of interest between the child‘s legal and best interests. As applied to this case, it would have been preferable for the trial court to have formally appointed the GAL as the child‘s counsel for the termination proceedings and cited the first (as opposed to second) sentence of Section 2313(a). I refuse, however, to promote form over substance and deny permanency to A.D.M. based upon the trial court‘s technically improper order denying the appointment of counsel. Instead, I conclude that the trial court was correct in denying Mother‘s motion because Mother sought not the appointment of counsel generally, but instead requested the appointment of “independent counsel.” Motion to Appoint Counsel for the Child [A.D.M.]. As I have stated above, Section 2313(a), in my view, does not mandate the appointment of counsel distinct from the GAL Attorney serving in the same dual capacity in the dependency proceedings,
Moreover, the record does not support Mother‘s assertion that a conflict of interest existed between A.D.M.‘s legal and best interests during the second termination proceeding, which would have required the GAL to move for the appointment of separate counsel. A conflict of interest may have existed during the first termination proceeding in 2014 when the GAL recommended that termination was in A.D.M.‘s best interest in contrast to A.D.M.‘s articulated desire to be reunited with Mother. However, by the time of the second termination proceeding, A.D.M. expressed a desire to live with his foster parents. He first noted that it was “a really hard decision because they both care about me. But my mom doesn‘t act like it.” N.T., 9/15/2015, at 10. He then stated that he would “probably go with” his foster parents because he felt “like [his] mom‘s not safe because she could probably do drugs again,” which he recognized would result in yet another removal of him and his younger brother. Id. at 11. In contrast he noted that living with his foster parents “would be pretty good because they‘re a good family and they take good care of me.” Id. at 17. He also clearly expressed his desire for permanency, noting that he had been “in foster care for a really long time [and had] been switching around with foster families a lot.” Id. Understandably, he hoped that if he was placed with his foster parents that his mom‘s “family could connect with the [foster family], the whole entire family.”7 Id. at 18. Thus, I agree with the trial court that A.D.M.‘s legal interests were consistent with the GAL‘s view of his best interests during the relevant second termination proceeding.
Therefore, I respectfully dissent from the remand and would affirm the termination of Mother‘s parental rights.
Justice Mundy joins this dissenting opinion.
JUSTICE MUNDY, dissenting
I agree with the main opinion‘s conclusion that pursuant to
As the main opinion states, this case presents an issue of statutory interpretation and is governed by the relevant legal standards set forth in the main opinion. Opinion, at 439-40, 161 A.3d at 178-80. Further, it is undisputed that the mandatory language of the first sentence of Section 2313(a) requires appointment of counsel in contested involuntary termination proceedings.
§ 2313. Representation
(a) Child.—The court shall appoint counsel to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents. The court may appoint counsel or a guardian ad litem to represent any child who has not reached the age of 18 years and is subject to any other proceeding under this part whenever it is in the best interests of the child. No attorney or law firm shall represent both the child and the adopting parent or parents.
In my view, the first and second sentences of Section 2313(a) address two entirely
The main opinion notes that the “trial court chose simply to skip over the first sentence of Section 2313(a) (which mandates counsel in contested [termination of parental rights] cases) in favor of that provision‘s second sentence which ‘gives this Court the discretion to appoint counsel or a GAL to represent any child who has not reached 18 years and is subject to any other proceeding under this part whenever it is in the best interests of the child.‘” Opinion, at 435, 161 A.3d at 176, quoting Trial Court Order, 9/9/15. Conflating the two sentences, the trial court relied on the second sentence of Section 2313(a) in support of its appointment of the GAL attorney. Nevertheless, as the trial court noted in denying Mother‘s motion for appointment of new counsel, the children had an established relationship with the GAL attorney, and her continued representation would best suit the needs of the children. Id. In light of the statutory interpretation discussion above, I fail to see how this contested involuntary termination proceeding is “any other proceeding,” or how the GAL attorney appointed to represent the children is not “mandated counsel” in accordance with the first sentence. Thus, the trial court‘s continued appointment of the GAL attorney from the dependency case satisfied Section 2313(a)‘s mandate. I believe that the main opinion is mistakenly reading the first and second sentences in conjunction with each other, which has the effect of changing the meaning of the first sentence. The General Assembly chose in the second sentence to say “counsel or a [GAL],” noting in the comment that the GAL need not be an attorney. Thus, in all “other proceedings” under the Adoption Act, the General Assembly contemplated the possibility that a child might not be represented by counsel at all. Contrary to the main opinion‘s suggestion, the inclusion of an option to solely appoint a non-attorney GAL in other proceedings does not necessarily render the appointment of a GAL attorney a violation of the Section 2313(a)‘s appointment of counsel clause. Our review in this case is limited to whether appointment of a GAL attorney satisfies Section 2313(a)‘s mandate that counsel be appointed in contested involuntary termination of parental rights proceedings. I conclude it does.
I also am troubled by the plurality‘s conclusion that “the plain language of Section 2313(a) requires the trial court to appoint a separate, independent attorney to represent a child‘s legal interests in a [termination of parental rights] case.” Opinion, at 431-32, 161 A.3d at 174-75 (emphasis added). The main opinion adopts the position that Section 2313(a) specified that appointed counsel would solely be representing the child‘s legal interests, and not best interests, without citation to where the term “legal” was added to Section 2313(a). I do not disagree with the main opinion‘s citation to Pennsylvania Rules of Juvenile Court regarding the role of a GAL attorney in dependency hearings, or the distinct legal and best interests which they must represent. See Opinion, at 433, 161 A.3d at 175, citing
Further, as the main opinion concedes, Section 2313(a) is the only requirement the General Assembly imposed, and “no other statutory provision speaks to the appointment of counsel or a GAL in an involuntary termination of parental rights proceeding.” Opinion, at 433, 161 A.3d at 175. The main opinion correctly notes that in custody cases when counsel is appointed, counsel “shall represent the child‘s legal interests and zealously represent the child as any other client in an attorney-client relationship[, and] ... shall not perform the role of guardian ad litem or best interests attorney.” Pa.R.C.P. 1915.11(a). And that on the contrary, in dependency cases, a GAL attorney “shall be charged with representation of the legal interests and the best interests of the child at every stage of the proceedings.”
In support of its position that a Section 2313(a) attorney should only represent the child‘s legal interests, the main opinion quotes In re Adoption of Hess, 562 A.2d 1375 (Pa. Super. 1989) for the proposition that “[t]he purpose of 2313(a) is to ensure that the needs and welfare of a child will be actively advanced by an advocate who owes loyalty only to the child.” Opinion, at 441 n.12, 161 A.3d at 180 n.12, quoting id. at 1381 (emphasis in original). The next sentence of Hess, however, makes clear that although the court‘s intent was to appoint counsel that owed a loyalty to the child, it did not intend to limit counsel to advocate solely for the child‘s legal interests. Indeed, the court was very much concerned with the child‘s best interests and stated:
Where, as in the present case, there are competing allegations of the best interests of the child, and where the court, without conducting a hearing by which it could receive evidence so thаt it could make a fully informed determination of the BEST interests of the child, summarily dispenses with one of the competing allegations of the child‘s best interests, and where no counsel has been appointed to represent exclusively the child‘s interests, we cannot conclude that the BEST interests of the child have necessarily been advocated and determined.
Hess, 562 A.2d at 1381 (emphasis in original).
The main opinion also disapproves of the Superior Court‘s reliance on In re K.M., 53 A.3d 781 (Pa. Super. 2012), overruling the pertinent holding in that case. Therein, the Superior Court concluded the language of Section 2313(a) was not clear and unambiguous as applied to circumstances where the GAL was an appointed attorney. Opinion, at 437, 161 A.3d at 177-78. Like the main opinion in this case, the K.M. court also focused on the meaning of the second sentence of the statute in relation to the first sentence, but nevertheless concluded that the statute did not preclude a GAL attorney from serving as legal counsel for the children. Upon reflection, I believe K.M.‘s focus on the second sentence was unnecessary. Ultimately, however, the outcome of K.M. was correct as the appointment of a second attorney when the child was represented by a GAL attorney would be superfluous.
Based on my conclusions regarding the statutory interpretation of Section 2313, it is unnecessary to further elaborate on the ability of a GAL attorney to reprеsent a child in a contested termination of parental rights matter. Nevertheless, there are two points I wish to make. First, as noted, the appointment of additional counsel following the appointment of a GAL attorney is superfluous. In this matter the GAL attorney represented the children‘s interests throughout dependency proceedings. Under the main opinion‘s interpretation, in addition to the GAL attorney, it would have been necessary to appoint an attorney for the first termination hearing when CYS petitioned to involuntarily terminate the parental rights of both Mother and Father. At that hearing, Father‘s rights were involuntarily terminated, but Mother‘s rights were not. Once the petition to involuntarily terminate Mother‘s rights was denied, the Section 2313(a) appointed legal counsel would no longer be involved in the matter, and the GAL attorney would resume her sole advocacy on behalf of the children during the permanency proceedings. At the commencement of the second termination hearing, it would again be necessary to appoint Section 2313 legal counsel, possibly the same attorney that represented the children at the first termination hearing, perhaps a new attorney. This legal counsel would represent the children alongside the GAL attorney throughout the termination hearing. It is my view such dual representation is both unnecessary and taxing to the system, and undermines continuity of representation for the children.
Second, the only concern articulated by the plurality regarding the appointment of a GAL attorney appears to be a conflict of interest between advocating the child‘s best interests and legal interests simultaneously. Opinion, at 442-43, 161 A.3d at 181. As previously noted, the GAL attorney must do this in the dependency actions, and Rule 1154 provides a procedure for appointing separate legal counsel from the GAL attorney if a conflict of interest between the child‘s wishes and best interests arise. I see no basis for concluding that a GAL attorney would be incapable of being held to the same standard in contested involuntary termination of parental rights cases. Further, in cases involving young children or children with limited capacity, the child may be unable to express a separate legal interest to an independent attorney appointed in addition to the GAL attorney, but would nevertheless be required to have one appointed under the plurality‘s interpretation. Therefore, I disagree with the plurality‘s holding that the GAL attorney cannot represent the child in a contested termination hearing.
In conclusion, by writing separately I am in no way discounting the importance of the child‘s interests or diminishing the
Justice Baer joins this dissenting opinion.
Notes
(a) Appointment.—When a proceeding, including a master‘s hearing, has been initiated alleging that the child is a dependent child under paragraph (1), (2), (3), (4) or (10) of the definition of “dependent child” in section 6302 (relating to definitions), the court shall appoint a guardian ad litem to represent the legal interests and the best interests of the child. The guardian ad litem must be an attorney at law.
(b) Powers and duties.—The guardian ad litem shall be charged with representation of the legal interests and the best interests of the child at every stage of the proceedings and shall do all of the following:
(1) Meet with the child as soon as possible following appointment pursuant to section 6337 (relating to right to counsel) and on a regular basis thereafter in a manner appropriate to the child‘s age and maturity.
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(5) Interview potential witnesses, including the child‘s parents, caretakers and foster parents, examine and cross-examine witnesses and present witnesses and evidence necessary to protect the best interests of the child.
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(7) Make specific recommendations to the court relating to the appropriateness and safety of the child‘s placement and services necessary to address the child‘s needs and safety.
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(9) Advise the court of the child‘s wishes to the extent that they can be ascertained and present to the court whatever evidence exists to support the child‘s wishes. When appropriate because of the age or mental and emotional condition of the child, determine to the fullest extent possible the wishes of the child and communicate this information to the court. A difference between the child‘s wishes under this paragraph and the recommendations under paragraph (7) shall not be considered a conflict of interest for the guardian ad litem.
Pa.R.J.C.P. 1800(3).(3) The Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 6311(b)(9), which provide that there is not a conflict of interest for the guardian ad litem in communicating the child‘s wishes and the recommendation relating to the appropriateness and safety of the child‘s placement and services necessary to address the child‘s needs and safety, is suspended only insofar as the Act is inconsistent with Rules 1151 and 1154, which allows for appointment of separate legal counsel and a guardian ad litem when the guardian ad litem determines there is a conflict of interest between the child‘s legal interest and best interest.
Pa.R.J.C.P. 1154, cmt.Comment: If there is a conflict of interest between the duties of the guardian ad litem pursuant to paragraphs (7) and (9), the guardian ad litem for the child may move the court for appointment as legal counsel and assignment of a separate guardian ad litem when, for example, the information that the guardian ad litem possesses gives rise to the conflict and can be used to the detriment of the child. If there is not a conflict of interest, the guardian ad litem represents the legal interests and best interests of the child at every stage of the proceedings. 42 Pa.C.S. § 6311(b). To the extent 42 Pa.C.S. § 6311(b)(9) is inconsistent with this rule, it is suspended. See Rules 1151 and 1800. See also Pa.R.P.C. 1.7 and 1.8.
“Legal interests” denotes that an attorney is to express the child‘s wishes to the court regardless of whether the attorney agrees with the child‘s recommendation. “Best interests” denotes that a guardian ad litem is to express what the guardiаn ad litem believes is best for the child‘s care, protection, safety, and wholesome physical and mental development regardless of whether the child agrees.