Necessity of Separate Legal Counsel in Termination of Parental Rights Proceeding
In Re: P.G.F., Appeal of K.F., 2020 WL 579038 (Pa. Super. 2020) (unreported), allocatur granted April 30, 2020, appeal docket 7 WAP 2020
The Pennsylvania Supreme Court granted allocatur in this termination of parental rights case to determine whether the child’s appointed legal counsel who represented both the child’s best interests (i.e., the lawyer’s view of what is best for the child) and the child’s legal interest (i.e., the child’s preferred outcome) failed to sufficiently inquire into the child’s preferred outcome in order to determine whether separate legal counsel was necessary to represent both interests.
Under the Adoption Act, 23 Pa.C.S. § 2313(a), any proceeding concerning the involuntary termination of parental rights in which a parent contests the termination requires the appointment of counsel for the minor child. This appointed counsel represents the child’s legal interests. Additionally, a trial court may appoint a guardian ad litem (GAL) to represent the child’s best interests. When there is no conflict between the child’s legal interest and best interest, a GAL may represent both the child’s best interests and the child’s legal interests.
Here, the Superior Court majority found that the trial court did not err in its determination that the Child’s legal and best interests did not conflict and therefore did not require appointment of separate counsel for Child’s legal interests. The Court reasoned:
The record reflects that on remand, Attorney Rose consulted with Child and determined that Child’s preferred outcome was to remain with Mother and Husband. Remand Hearing at 6, 8-9, 16. In fact, Child became upset when considering the possibility of not living with Mother and Husband. Id. Child identified Husband as his father and did not seem to remember Father at all. Id. at 5, 12, 16. When asked if he knew anyone by Father’s name, Child could only recall a classmate who shares the same name as Father. Id. at 5-6, 12, 18-19. He did not appear to recall spending any time with Father. Id. at 10-11. He identified Husband’s parents as his own grandparents. Id. at 5. In light of these facts, the trial court’s determination that Child’s legal and best interests do no conflict is well-supported by the record and it did not err in declining to appoint separate legal interests’ counsel for Child.
Slip Op. at 7-8.
Judge Bowes in dissent reasoned that the Child’s desire to continue to live with [Mother] and [Husband] has no bearing on the determinative question whether the child prefers to preserve or terminate Father’s parental rights.” Dissent Slip Op. at 1. Judge Bowes found that Attorney Rose failed to determine Child’s “preferred outcome/legal interest in the case,” which was her primary obligation , and the majority was incorrect in using Child’s preference to remain with Mother and Husband as support of the Court’s legal-interest determination because “Child’s preference regarding physical custody is not suggestive, much less determinative, of his legal interest.” Dissent Slip Op. at 6. Judge Bowes reasoned that although Child was able to express his preference, the record shows Attorney Rose avoided asking Child’s preferred outcome as to termination of parental rights. Dissent Slip Op. at 7- 9. Therefore, the decision to forego the question of Child’s preference prevented elimination of the potential for a conflict between advocating for [Child’s] still-undisclosed legal interest and what she deemed to be in his best interests.” Dissent Slip Op. at 9.
The Supreme Court granted allocatur to determine:
Whether the trial court and the Superior Court erred in determining that the Guardian Ad Litem could act as both legal counsel for the child as well as “best interests” counsel for the minor child, when the child’s legal counsel failed to sufficiently inquire into the child’s preferred outcome of the proceedings?