Intermediate appellate court’s authority to sua sponte review whether child’s legal interests are represented in parental rights termination proceedings
In re: Adoption of: K.M.G.; A.M.G.; S.A.G.; J.C.C., 219 A.3d 682 (Pa. Super. 2019), allocatur granted Dec. 9, 2019, appeal dockets 55, 56, 57, and 58 WAP 2019
The Pennsylvania Supreme Court granted allocatur to consider whether the Superior Court has the authority to review, sua sponte, whether a child’s legal interest was represented by counsel during an involuntary termination of parental rights hearing.
After the orphans’ court involuntarily terminated T.L.G.’s (Mother) parental rights to her four minor children (Children), the Superior Court certified Mother’s consolidated appeals for en banc review to determine whether, in reviewing involuntary termination of parental rights decisions, Superior Court has the obligation to review sua sponte whether the Guardian ad Litem (“GAL”) had a conflict. During dependency cases, a GAL is appointed by the court to represent the legal and best interests of the child. If the stated preferences of the child differ, the GAL is supposed to notify the court, who then appoints a separate attorney to represent the child’s stated preference. In most cases, the GAL represents the child during dependency and termination proceedings.
Superior Court affirmed the termination of Mother’s parental rights and held that it did not have the authority to sua sponte review every termination case to make an independent determination of whether the GAL had a conflict because the child’s stated preference differed from the GAL’s position. In so holding, Superior Court overruled its holding in In re Adoption of T.M.L.M., 184 A.3d 585 (Pa. Super. 2018), in which the court sua sponte reviewed the record for whether the GAL may have a conflict, , because the “Superior Court only has the authority to raise sua sponte the issue of whether the lower court appointed any counsel for the child, and not the authority to delve into the quality of the representation.” Slip. Op. at 5. Thus, the court concluded:
Applying the current precedent to these facts, Superior Court has no authority to raise sua sponte the issue of whether a GAL has a conflict. Rather, as stated previously, this Court only has the authority to raise sua sponte the trial court’s failure to appoint any counsel for the Child. [In re: K.J.H., 180 A.3d 411, 413 (Pa. Super. 2018).] In this case, the orphans’ court did appoint counsel, the GAL, and we have no authority to delve into the quality of the GAL’s representation. The Supreme Court has not authorized us to do so.
Moreover, we do not see the need to do so because numerous protections exist to ensure that the GAL does not have a conflict at an involuntary termination hearing. First, a GAL has a professional responsibility to notify the court if there is a conflict so that the court may appoint separate counsel. See Rules of Professional Responsibility 1.7. Second, any party has standing to raise the issue of a potential conflict before the orphans’ court or Superior court. [Citations omitted]. Finally, the orphans’ court, as in T.M.L.M. and this case, often decides this issue. Thus, there are many mechanisms to protect a child’s right to counsel who does not have a conflict at a termination hearing.
Slip Op. at 9.
President Judge Emeritus Bender, in dissent, found that the Superior Court did have the authority, “particularly in light of the fact that a failure to raise a question of separate counsel for the child is non-waivable”:
In In re T.S., 192 A.3d 1080 (Pa. 2018), our Supreme Court stated that the right to legal counsel belongs to the child, not the parent. This is so because minors do not have the capacity to raise legal claims for themselves. Id. at 1087. Nor should the child have to rely on a parent or the attorney representing the child to alert the court that this right is not being enforced. Id. Therefore, to assure that the child’s right is protected, I would conclude that this Court may review sua sponte whether there is a conflict, particularly in light of the fact that a failure to raise a question of separate counsel for the child is non-waivable.
Dissent Slip Op. at 3.
Judge Bender noted the lack of precedent that definitively determines the issue and opined that the Majority’s decision ignores the precedent set by Berry v. Berry, 197 A.3d 788, 797 (Pa. Super. 2018) that requires the Superior Court to “protect the rights of minors and incompetents” which takes “precedence over procedural rules otherwise limiting the scope of review and matters affecting the rights of minors can be considered by this court [sua sponte].” Dissent Slip Op. at 3-5. According to Judge Bender, this obligation to protect the child’s rights along with protecting the integrity of the proceeding provides the Superior Court with the authority to determine whether a conflict exists sua sponte based on the facts in the record.
The Supreme Court will decide on the following issue:
Did the Superior Court commit an error of law by concluding that it has no authority to review, sua sponte, whether a child’s legal interest was represented by counsel during an involuntary termination of parental rights hearing, as required by Section 2313(a) of the Adoption Act and this Court’s decision in In re Adoption of L.B.M.?
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