PA high court acts to strengthen child's right to counsel

11/10/2020, Litigation, Termination of Parental Rights (State) - Children

In K.M.G., 2020 Pa. LEXIS 5750 (2020), the Pennsylvania Supreme Court took up a question related to the right to counsel for children in termination of parental rights proceedings.  A prior case in which the NCCRC was heavily involved, In re L.B.M., held that children have a right to client-directed counsel, although a subsequent opinion held that the attorney-GAL from the dependency proceeding is not automatically disqualified from serving in this role absent a proven conflict of interest.  In K.M.G., the mother’s brief argued that the appellate court should be able to sua sponte review whether client-directed counsel was appointed at all, whether the question of a conflict was examined by the trial court in a circumstance where the attorney-GAL is appointed to be the client-directed counsel, and whether the trial court’s determination of a lack of conflict was accurate.  The NCCRC signed on to an amicus brief in the case that argued there should be sua sponte review of whether client-directed counsel was appointed at all and/or where there is no evidence on the record that the attorney-GAL has actually ascertained the child’s wishes so as determine there is no conflict.  The Juvenile Court Project filed an amicus brief arguing that the attorney-GAL must put the child’s stated preferences into the record.


The high court held that a) the appellate court can sua sponte raise the question of whether there was any counsel appointed for the child (relying on the high court’s holding in L.B.M. that the failure to appoint counsel for the child is structural error requiring reversal); b) because the trial court has an obligation to determine whether an attorney-GAL has a potential conflict before appointing such attorney-GAL as the client-directed counsel, the appellate court can sua sponte raise the question of a possible conflict where the trial court fails to engage in any such analysis; c) where the trial court does engage in such an analysis, the appellate court cannot sua sponte analyze the adequacy of the trial court’s holdings as to the conflict; and d) the attorney-GAL is not required to put the child’s stated wishes on the record for purposes of aiding appellate review on the conflict, and the failure to do so is not an indication that the attorney-GAL hasn’t determined what those wishes are.  The high court said that the first two types of review are “binary” (in the sense that they don’t require factfinding but just a “yes” or “no” answer as to whether the action was taken at all), and so are less problematic, especially in light of policy disfavoring sua sponte review. 


Justice Saylor concurred and pointed to NACC guidance that a child’s legal interests and stated interests are not necessarily the same thing, and also pointed to the ABA Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings for the notion that counsel for the child is both “an advocate and a counselor.”  As such, Justice Saylor (joined by Justice Dougherty) stated that “a child's legal counsel in involuntary termination proceedings should carefully screen against conflicts -- not only between the expressed and best interests of the child -- but also between his substituted judgment determination (applicable where children lack the capacity to express their wishes) and a best-interests analysis. When either sort of conflict exists, counsel should seek the appointment of an independent, best-interests advocate.”  Justice Dougherty cautioned against assuming that advancing the child’s wishes necessarily advances the child’s welfare.  Justice Hecht (joined by Justice Donohue) dissented, stating that preventing the appellate court from examining the adequacy of the trial court’s determination of no conflict and refusing to require the attorney-GAL to put the child’s stated preferences into the record weakened the child’s right to counsel.  Justice Hecht said that the binary review authorized was merely a “pro forma exercise”, and that it was unfair to the child to rely on the parents to raise the possible conflict.



The NCCRC provided input and signed on to an amicus brief in the case.