PA Supreme Court: children have right to counsel in termination proceedings
While a state may have many statutes, court decisions, or court rules governing appointment of counsel for a particular subject area, a "Key Development" is a statute/decision/rule that prevails over the others (example: a state high court decision finding a categorical right to counsel in guardianships cases takes precedence over a statute saying appointment in guardianship cases is discretionary).
08/23/2017, Litigation, Termination of Parental Rights (State) - Children
In In re L.B.M., the Supreme Court of Pennsylvania clearly established the right to client-directed counsel for children in termination of parental rights cases.
First and foremost, the main opinion rejected the position of the trial court that a child’s statutory right to “counsel” is satisfied simply where the best interests GAL happens to be a lawyer. The Court held that the word “counsel”, when viewed in context, means the right not just to have a representative who is a lawyer, but to have such lawyer advocate for the child’s wishes (i.e., “legal counsel”).
Second, the court fractured as to whether the lawyer-GAL from the dependency proceeding can be re-appointed to represent the child’s legal interests in the termination proceeding. In PA termination proceedings, appointment of counsel for the child is mandatory, but appointment of a GAL is discretionary, so a dependency attorney-GAL could be re-appointed for the termination proceeding just as legal counsel or to serve in a dual role as best interests/legal counsel. The main opinion written by three of the justices (Wecht, Donohue, and Dougherty) held that re-appointing the attorney-GAL to serve as legal counsel would be confusing to the child in terms of the role change, plus if the dependency proceedings were still ongoing in any way, the lawyer-GAL appointed as just legal counsel might still be called upon at some point to serve the best interests role. The majority also rejected the dissent’s argument that a re-appointed lawyer-GAL could request legal counsel for the child if a conflict of interest arose, since "This essentially would make the GAL the arbiter of the child’s right to counsel. The right belongs to the child. That child generally is not in a position to assert, much less to advocate, the presence of a conflict of interest.”
Two of the justices (Saylor and Todd) concurred and said that if the trial court seeks to re-appoint the attorney-GAL, the trial court should determine whether there is a conflict of interest between the child’s best interests and legal interests. Since in the instant case there had been no one even ostensibly serving the legal counsel role (the trial court seeing such a role as unnecessary), the concurrence agreed there had been reversible error requiring a remand. Two justices (Baer and Mundy) each wrote their own dissents that relied on the fact that dual role attorneys are permitted by the PA Juvenile Code and court rules for juvenile court proceedings (a fact we pointed out further strengthened our argument, since the Adoption Code has no such explicit authorization). In their view, if the reappointed attorney-GAL saw a conflict, the attorney-GAL would raise it, satisfying any concern. And they did not see a conflict in this case between the best and legal interests of the child.
Finally, the main opinon held that the failure to appoint counsel is structural error requiring reversal without an examination of whether the error was harmless. This was one of the NCCRC’s primary contribution to the case, as this issue was not briefed by the petitioner’s counsel and so only existed in our portion of the amicus brief the NCCRC co-wrote with the Juvenile Law Center, ACLU of PA, Community Legal Services, Nat’l Association of Counsel for Children, and PA Legal Aid Network (collectively called the “Juvenile Law Center brief” by the Court). Importantly, the Court held that the fact that the child's right to counsel is statutory as opposed to constitutional does not change the conclusion. The Court stated:
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 structural 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.
This ruling on structural error is arguably applicable to any other area where a person has a statutory right to appointed counsel.
NCCRC Coordinator John Pollock contributed to a piece in the Legal Intelligencer (subscription req'd) describing the important rulings in the case.
Then, in T.S. and E.S., the Court held in another fractured opinion (but one that got a necessary 4 votes) the following things:
1) First, the Court held that the mother had not waived the issue of the child’s right to counsel by failing to raise it until the appeal, because "The statutory right under Section 2313(a) belongs to the child, not the parent. Accord In re E.F.H., 751 A.2d 1186, 1189 (Pa. Super. 2000). There was no attorney representing solely the children’s legal interests who could have raised their rights in the trial court, and the children plainly could not have done so themselves.”
2) The Court then interpreted L.B.M. to stand for the proposition that where a child’s best interests and legal interests do not diverge, an attorney-GAL can serve both the best interests and legal interests role. But there is still an open question as to who must determine if a conflict exists: the attorney-GAL or the court.
3) Finally the court held that where a child is too young to express a preference (in this case, 2 or 3 years old, but it implied it might think a child has to be 5 or 6 years old to be old enough to express a meaningful preference), it is appropriate for the GAL to represent both legal and best interests, essentially implying that a nonverbal child doesn’t even have legal interests (holding that "As a matter of sound logic, there can be no conflict between an attorney’s duty to advance a subjective preference on the child’s part which is incapable of ascertainment, and an attorney’s concurrent obligation to advocate for the child’s best interests as she understands them to be”). The court also rejected the argument that the court should presume that a nonverbal child opposes the termination.
If "yes", the established right to counsel or discretionary appointment of counsel is limited in some way, including any of: the only authority is a lower/intermediate court decision or a city council, not a high court or state legislature; there has been a subsequent case that has cast doubt; a statute is ambiguous; or the right or discretionary appointment is not for all types of individuals or proceedings within that category.
Appointment of Counsel: categorical Qualified: no
The NCCRC worked with the petitioner and collaborated on an amicus brief in both L.B.M. and T.S.