Right to counsel

Indigent parents have a right to counsel in termination of parental rights cases upon request.  Courts must inform parents of the need to request counsel.

In most states, adoption proceedings are separate from termination of parental rights proceedings stemming from an abuse or neglect finding.  However, 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). The Adoption Act states, “The court shall appoint counsel for a parent whose rights are subject to termination in an involuntary termination proceeding if, upon petition of the parent, the court determines that the parent is unable to pay for counsel or if payment would result in substantial financial hardship.” 23 Pa. Cons. Stat. Ann. § 2313(a.1).  

The Superior Court has held that while a parent must make a request for counsel, a parent does not waive their right to counsel where the parent is not informed of the need to make such a request. In re X.J., 105 A.3d 1, 5 (Pa. Super. Ct. 2014) (concluding that where mother was represented at the dependency phase but not at the termination phase, “the best course of action is to remand this case for a new termination hearing, before which the orphans’ court shall advise Mother of her counsel rights, appoint counsel for Mother, or affirmatively determine that Mother does not qualify for counsel.”).  In In re Adoption of C.A.S., the court reversed a termination where the father had received conflicting notices of who to contact if he wished to request appointed counsel. 166 A.3d 353 (Pa. Super. Ct. 2017).

When a party is denied their right to counsel–or failed to properly waive the right–courts are required to raise the issue sua sponte on appeal. See In re E.B.G., No. 1222 MDA 2023, 2024 WL 1174032 (Pa. Super. Ct. March 19, 2024) (citing to In re X.J., 105 A.3d 1, 5 (Pa. Super. Ct. 2014), which in turn relies on Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa.Super.2011)).