Right to counsel

Key_development Question_mark

06/27/2018, Legislation, Abuse/Neglect/Dependency - Children

For children in dependency proceedings, 42 Pa. Cons. Stat. Ann. § 6311 specifies that “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.  Additionally, SB815, enacted in 2012, added 42 Pa. Cons. Stat. Ann. § 6337.1(a), which specifies that “Legal counsel shall be provided for a child who is alleged or has been found to be a dependent child in accordance with the Pennsylvania Rules of Juvenile Court Procedure.”  In turn, Pa. R. J. C. P. 1151 specifies that children are appointed a guardian ad litem for dependency-type proceedings and counsel for delinquency-type proceedings (including truancy).


In In re J'K.M., 2018 Pa. Super. LEXIS 721 (Pa. Super. 2018), the court considered a case where the child’s wishes to remain with the parent diverged from the guardian ad litem’s recommendation that the child be removed.  The court observed that 42 Pa.C.S. § 6311(b)(9) states, “A difference between the child’s wishes under this paragraph and the recommendations under paragraph (7) [relating to “appropriateness and safety of the child’s placement and services necessary to address the child’s needs and safety”] shall not be considered a conflict of interest for the guardian ad litem.”  But it pointed out that “the Supreme Court suspended Section 6311(b)(9) to the extent that it conflicts with Rule 1154. Pa.R.J.C.P. No. 1800(3).”  Rule 1154 in turn says that where there is a conflict between the GAL’s recommendation and the child’s wishes, "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.”  The court also pointed out that in In re L.B.M., 161 A.3d 172 (Pa. 2017), the Supreme Court of Pennsylvania had held that separate counsel must be appointed in the termination of parental rights context when there is a conflict between the GAL and the wishes of the child.  Given that the child’s wishes were ascertainable (and expressed) in the instant case, the court held that “this divergence of opinions between Child's legal interests and best interests presents a conflict as contemplated in L.B.M. and Pa.R.J.C.P. 1151 and 1154. Accordingly, the GAL should have requested that the trial court appoint a separate GAL.”

Appointment of Counsel: categorical Qualified: yes