Appointment of Independent Counsel for Minor Children; Termination of Parental Rights
In Re: T.S., E.S., minors, Pet of: T.H.-H., 2017 WL 3669504 (Pa. Super. 2017)(unreported), allocatur granted Oct. 26, 2017, appeal docket 50 WAP 2017
This case arises from T.H.-H.’s (Mother) appeal from a trial court order that involuntarily terminated her parental rights to her two young children.
The Allegheny County Office of Children, Youth and Families (“CYF”) became involved with Mother when her child, E.S., was born. Mother had admitted to using marijuana while pregnant, and tested positive for marijuana after the birth of E.S. CYF offered in-home services to assist Mother with her parenting and substance abuse issues, however, Mother continued to use marijuana, smoking it in the presence of T.S. and E.S. (Children), and exhibited minimal parenting skills. As a result, the Children were removed from Mother’s care, adjudicated dependent, and then placed in a foster home. CYF filed a petition for involuntary termination of Mother’s parental rights to the Children, and the trial court entered order terminating Mother’s parental rights to the Children, pursuant to 23 Pa. C.S. § 2511(a)(2), (5), (8) and (b).
On appeal to Superior Court, Mother conceded that CYF established clear and convincing grounds for termination of her parental rights pursuant to 23 Pa. C.S. § 2511(a)(2), (5), (8); however, Mother contended that the trial court abused its discretion and erred as a matter of law in concluding that termination of her parental rights would best serve the needs and welfare of the Children pursuant to 23 Pa. C.S. § 2511(b). Superior Court affirmed on the basis of the trial court’s opinion. However, Mother also raised the following question:
Did the trial court abuse its discretion and/or err as a matter of law in concluding that termination of Appellant’s parental rights would serve the needs and welfare of the Children pursuant to 23 Pa. C.S. § 2511(b)?
In the argument section of her brief, Mother raised for the first time an additional issue not presented in the trial court or in her Statement of Errors under Pa. R.A.P. 1925(b): that the Children were entitled to be represented by appointed legal counsel, separate from the attorney guardian ad litem, pursuant to In re L.B.M., 161 A.3d 172, 183 (Pa. 2017).
In L.B.M., the mother filed a motion requesting the appointment of independent counsel for the children following the entry of an order terminating her parental rights. In the motion, the mother in L.B.M. cited 23 Pa. C.S. § 2313(a), and averred that the guardian ad litem’s position “may be adverse to the [children’s] position.” Id. at 176. Ultimately, the Supreme Court of Pennsylvania reversed and remanded L.B.M.’s case to the Superior Court, holding that the failure to appoint counsel for a child in a contested, involuntary termination of parental rights proceeding was a structural error.
On this basis, Mother claimed that the trial court’s failure to appoint independent counsel was a structural error in the proceedings and that a remand for a new trial following the appointment of counsel for the Children therefore is required. Mother defended her failure to raise this issue earlier, and argued the failure should be excused, because the Supreme Court had yet to rule in L.B.M. at the time of trial and when Mother filed her Rule 1925(b) Statement.
In its brief, the guardian ad litem responded to Mother’s appointment-of-counsel issue and argued that Superior Court in In re D.L.B., 166 A.3d 322 (Pa. Super. 2017), interpreted L.B.M. to allow a guardian ad litem to serve as legal counsel for a child in an involuntary termination proceeding so long as the child’s legal and best interests are not in conflict, and no such conflict had been identified in Mother’s case.
The Superior Court agreed that, based on its holding in D.L.B., L.B.M. does not require appointment of independent legal counsel for a child in an involuntary termination proceeding unless the child’s legal and best interests are in conflict. Because Mother did not argue that there was a divergence of the Children’s legal and best interests, the Superior Court found the trial court’s appointment of the guardian ad litem to represent the Children was appropriate.
The Supreme Court granted allocatur to determine:
Whether the Superior Court erred in failing to require that the court appoint counsel for a child in a contested termination of parental rights hearing as required by 23 Pa. C.S. § 2313(a) and In re L.B.M., 161 A.3d 172 (Pa. 2017)?