All about the children’s right to counsel in PA TPR cases

Background

In most states, adoption proceedings are separate from termination of parental rights proceedings stemming from an abuse or neglect finding. However, it appears that in Pennsylvania, the state uses the Adoption Act to file termination of parental rights petitions based on abuse/neglect. See e.g., In re Adoption of J.N.F., 887 A.2d 775, 778 (Pa. Super. Ct. 2005). In turn, the Adoption Act requires the court to appoint counsel to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents. 23 Pa. Cons. Stat. Ann. § 2313(a).  But the absence of an appearance by a parent does not relieve the court of the duty to appoint counsel for the child, since a parent may contest the matter at any time, including on appeal. See K.E.G., No. 1088 MDA 2022, 2023 WL 176685 (Pa. Super. 2023).

Summary of the Law

Pennsylvania courts have found that the right to counsel for children includes the right to client-directed counsel. See In re L.B.M., 161 A.3d 172 (Pa. 2017); see also Interest of H.H.N., 296 A.3d 1258, 1264-65 (Pa. Super. Ct. 2023) (noting that counsel’s obligations are not fulfilled by simply reporting a child’s preferences to the court) (citing e.g., In re P.G.F., 247 A.3d 955, 966 [Pa. 2021] [“[g]enerally, an attorney acting as a child’s legal counsel must, at a minimum, attempt to ascertain the child’s preference and advocate on the child’s behalf”]).

But a guardian ad litem (GAL) who is an attorney can serve in a dual role if (a) the trial court determines that there is no conflict between the child’s stated interest and the child’s best interests; or (b) the child is too young to express a preference. See In re T.S., E.S.,192 A.3d 1080 (Pa. 2018); K.M.G., 240 A.3d 1218 (Pa. 2020).

Discussion

Client-directed counsel is required and deprivation is structural error.

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. 161 A.3d 172 (Pa. 2017). 

First and foremost, the L.B.M. 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. 161 A.3d at 179-80.  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”).  However, 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.

The main opinion in L.B.M. also 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.  See also Interest of H.H.N., 296 A.3d 1258, 1266 (Pa. Super. Ct. 2023) (finding the denial of counsel structural error where the trial court dismissed counsel from the TPR hearing and “when the Court reconvened for the goal change hearing, Children’s TPR counsel merely reported Children’s preferred outcome to the trial court.”).

The right is non-waivable, and a GAL may serve in a dual role absent a conflict or if the child is too young to express a preference.

In In re T.S., E.S.,192 A.3d 1080 (Pa. 2018), another fractured opinion, the Pennsylvania Supreme Court held as follows:

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:

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.

T.S., 192 A.3d at 1087.

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 in a termination proceeding, an attorney-GAL representing the child’s best interests can also fulfill the role of [legal counsel].” T.S., 192 A.3d at 1088 (internal citations omitted).  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”). Id.at 1089-90.  The court also rejected the argument that the law should presume that a nonverbal child opposes the termination.

Ability of appellate court to sua sponte address child’s right to counsel

An appellate court can review sua sponte (a) whether a child was denied counsel and (b) whether there was a conflict, if the trial court failed to analyze the conflict of interest.  However, an appellate court cannot analyze the adequacy of a trial court’s finding about a conflict.

In K.M.G., 240 A.3d 1218 (Pa. 2020), 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 Pennsylvania Supreme 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 guidance from the National Association of Counsel for Children 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.

Appointing counsel where the parent doesn’t contest the termination

Appointment of counsel is still required if a parent fails to file an appearance.  In Adoption of K.E.G., 288 A.3d 539 (Pa. Super. 2023), the Superior Court of Pennsylvania considered whether a child has a right to counsel where the parent does not contest the termination of parental rights case.  23 Pa.C.S. § 2313(a) states “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 conceded that “Father did not appear at the hearing to contest the termination of his parental rights.” However, the Court went on to hold:

[T]his does not alleviate the trial court from its responsibility to appoint counsel for Child. Absent a parent voluntarily relinquishing his or her parental rights, there is no guarantee that a parent will not contest the termination of their parental rights at any stage of the proceeding – pre-hearing, during the hearing, post-hearing, or even on appeal. Stated another way, since Section 2313 requires the appointment of counsel for a child when one or both parents contest the involuntary termination proceeding and a parent may still contest the involuntary termination proceeding after the hearing by filing an appeal, the failure of a parent to appear at a termination hearing does not alleviate the need to appoint counsel for the child. It is only when a parent has voluntarily relinquished his parental rights prior to the termination hearing that a parent has waived his right to contest the proceeding and Section 2313 no longer requires the appointment of counsel for the child.

Id. at 542.  The Court then concluded that this was a structural error requiring reversal of the termination of parental rights.