In Re: Adoption of: L.B.M., A Minor , 639 Pa. 428 ( 2017 )

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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN RE: ADOPTION OF: L.B.M., A MINOR : No. 84 MAP 2016
:
: Appeal from the Order of the Superior
APPEAL OF: J.P., MOTHER : Court at 1834 MDA 2015 dated May 31,
: 2016 Affirming the Order of the Court of
: Common Pleas of Franklin County,
: Orphans’ Court Division, at 42-ADOPT-
: 2014 dated September 25, 2015.
:
: ARGUED: December 6, 2016
IN RE: ADOPTION OF: A.D.M., A MINOR : No. 85 MAP 2016
:
: Appeal from the Order of the Superior
APPEAL OF: J.P., MOTHER : Court at 1835 MDA 2015 dated May 31,
: 2016 Affirming the Order of the Court of
: Common Pleas of Franklin County,
: Orphans’ Court Division, at 41-ADOPT-
: 2014 dated September 25, 2015.
:
: ARGUED: December 6, 2016
Justice Wecht delivers the Opinion of the Court with respect to Part I, Part
II(A), and Part II(C) and announces the judgment of the Court. The
opinion is joined in full by Justices Donohue and Dougherty. Chief Justice
Saylor and Justice Todd join the opinion, except with respect to Part II(B),
and the Chief Justice files a concurring opinion, joined by Justice
Todd. Justices Baer and Mundy file separate dissenting opinions, which
the authors cross-join.
OPINION
JUSTICE WECHT DECIDED: March 28, 2017
This case requires us to determine whether 23 Pa.C.S. § 2313(a), which
mandates the appointment of counsel for children involved in contested involuntary
termination of parental rights (“TPR”) proceedings, is satisfied by the appointment of a
guardian ad litem (“GAL”) provided that the GAL is an attorney. We hold that it is not.
I. Background
The plain language of Section 2313(a) requires the trial court to appoint a
separate, independent attorney to represent a child’s legal interests in a TPR case. The
trial court erred in failing to appoint such counsel, and the Superior Court erred in ruling
that the GAL’s involvement sufficed to satisfy Section 2313(a). Accordingly, we reverse
and remand for further proceedings.
At the outset, we define the terms that provide the backdrop for our resolution of
this issue. In cases involving children, the law acknowledges two separate and distinct
categories of interest: a child’s legal interests, which are synonymous with the child’s
preferred outcome, and a child’s best interests,1 which the trial court must determine.2
1
The Comment to Pa.R.J.P. 1154 provides:
“Legal interests” denotes that an attorney is to express the child's wishes
to the court regardless of whether the attorney agrees with the child's
recommendation. “Best interests” denotes that a guardian ad litem is to
express what the guardian ad litem believes is best for the child's care,
protection, safety, and wholesome physical and mental development
regardless of whether the child agrees.
Pa.R.J.C.P. 1154 cmt.
2
See In re Adoption of S.P., 47 A.3d 817, 820 (Pa. 2012) (court must determine
child’s best interests in termination of parental rights); In re R.I.S., 36 A.3d 567, 573 (Pa.
2011) (child’s best interests guide the court in a goal change); In re Adoption of J.E.F.,
902 A.2d 402, 412 (Pa. 2006) (child’s best interest is the “paramount consideration” in
adoption); Moore v. Moore, 634 A.2d 163, 168 (Pa. 1993) (“The primary concern in any
custody case is the best interests of the child.”); In re B.L.L., 787 A.2d 1007, 1014 (Pa.
Super. 2001) (discussing differences between custody and termination of parental rights
(continued…)
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While the best interests determination belongs to the court, statutes and rules guide the
court and channel its discretion. For instance, in child custody cases, the court may
appoint counsel for the child, who “shall represent the child’s legal interests and
zealously represent the child as any other client in an attorney-client relationship” and
“shall not perform the role of a guardian ad litem or best interests attorney.” Pa.R.C.P.
1915.11(a). Additionally, the custody court may choose to appoint a GAL “to represent
the best interests of the child,” and that GAL can be either an attorney or mental health
professional. Pa.R.C.P. 1915.11-2(a).
In dependency cases where the trial court is required to appoint a GAL, the GAL
must be an attorney. 42 Pa.C.S. § 6311(a). The GAL is authorized by statute to
represent both the child’s legal interests and the child’s best interests. Id. The GAL
makes recommendations to the court regarding the child’s placement and needs, and
must advise the court of the child’s wishes, if ascertainable. 42 Pa.C.S. § 6311(b).
Further, the statute explicitly provides that any difference between the child’s wishes
and the GAL’s recommendations “shall not be considered a conflict of interest.” 42
Pa.C.S. § 6311(b)(9).3
By contrast to this statutory authorization for a GAL in dependency proceedings,
Section 2313(a) of Title 23 prescribes a different scheme for the representation of
children in termination of parental rights and adoption cases.
(…continued)
and noting that, in termination of parental rights, child’s legal interests are protected by
representation of counsel).
3
Although Section 6311(b)(9) specifically provides that the dependency GAL has
no conflict of interest when the child’s best interests and legal interests diverge, this
Court has suggested that, in such a instances, the GAL should request appointment of
legal counsel. Pa.R.J.C.P. 1154 cmt. Indeed, we have suspended Section 6311(b)(9)
to the extent that it conflicts with the rule. Id. cmt.
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(a) Child.--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 may appoint counsel
or a guardian ad litem to represent any child who has not reached the age
of 18 years and is subject to any other proceeding under this part
whenever it is in the best interests of the child. No attorney or law firm
shall represent both the child and the adopting parent or parents.
23 Pa.C.S. § 2313(a).4 No other statutory provision speaks to the appointment of
counsel or a GAL in an involuntary termination of parental rights proceeding.
With this legal framework in mind, we turn to the facts of today’s case. J.L.P.
(“Mother”) and J.D.M. (“Father”) are the parents of A.D.M. (born March 2007) and
L.B.M. (born May 2011). On July 2, 2013, Franklin County Children and Youth Services
(“CYS”) conducted a home visit with Mother. The visit was prompted by a referral
alleging that Mother was on the verge of becoming homeless. The next day, Mother
contacted CYS seeking to place the children due to her unstable living conditions. At
the time, Father was incarcerated. That same day, the trial court ordered the children to
be placed with CYS. Soon after, the children were adjudicated dependent. As required
by Section 6311, the trial court appointed a GAL for the children (Attorney Kristen
Hamilton) at the beginning of the dependency proceedings.
4
The comment to the statute states:
This new provision requires the court to appoint counsel for a child when
parental rights are being involuntarily terminated and, when necessary, to
appoint a guardian ad litem for a child who has not reached the age of 18
years. The guardian ad litem concept is broad enough to allow the
appointment of a person other than a lawyer. For example, a social worker
could be appointed guardian ad litem within this provision; in an
appropriate case a nonlawyer guardian ad litem could request
appointment of counsel.
23 Pa.C.S. § 2313 Jt. St. Gov. Comm. cmt.
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On August 13, 2013, Mother pleaded guilty to possession of drug paraphernalia
and was sentenced to twelve months of probation.5 Thereafter, Mother was
incarcerated, mostly due to probation violations, from July 5, 2013 to October 2, 2013,
October 24, 2013 to November 6, 2013, December 12, 2013 to April 24, 2014, and May
5, 2014 to June 20, 2014.
On August 6, 2014, following Mother’s repeated periods of incarceration, CYS
filed a TPR petition. On November 25, 2014, after two hearings, the trial court issued
findings of fact and a decree. The trial court declined to terminate Mother’s parental
rights, finding that Mother, while only recently released from jail, had obtained both
housing and employment. Decree, 11/25/2014, at 8, 14-16.6 Further, Mother had
attended almost all of her available visits with the children and had engaged and
bonded with them. Id. at 8-9, 18. The court expressed “grave concerns” about the
effect that severance of the relationship would have on A.D.M., who was “extremely
close” with Mother. Id. at 19. The testimony reflected that A.D.M. “desperately want[ed]
to be with his mother.” Notes of Testimony (“N.T.”), 10/3/2014, at 60; see also N.T.,
10/24/2014, at 38.
Following the first TPR hearing, Mother made significant progress, and the
children were scheduled to be reunited with her. However, while reunification was
pending, L.B.M. returned from a weekend visit with Mother with bruises on his neck and
chest. Although the bruises were suspected to be non-accidental, an investigation did
5
At the time of her plea, Mother already was on probation stemming from a 2012
conviction for possession of a small amount of marijuana.
6
The trial court terminated Father’s parental rights. He appealed, and the
Superior Court affirmed the trial court’s decision. In re Adoption of A.D.M., 94 MDA
2014, 2015 WL 7089589 (Pa. Super. June 15, 2015) (unpublished).
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not reveal their cause. Ultimately, the trial court delayed reunification in order to permit
A.D.M. to finish the school year. Shortly thereafter, it was discovered that Mother had
again violated her probation by living apart from her approved residence. Mother was
reincarcerated. While in jail, Mother participated in visits with the children until her
privileges were suspended after she tested positive for suboxone.
On August 4, 2015, the GAL filed a second TPR petition, citing both Mother’s re-
incarceration and the cancellation of her visitation privileges. On August 28, 2015,
Mother filed a motion requesting the appointment of counsel for the children, citing
Section 2313(a). Mother noted that the GAL’s position “may be adverse to the
[children’s] position,” and accordingly averred the necessity of independent counsel.
Motion to Appoint Counsel for the Child, 8/28/2015, at 1.
On September 9, 2015, the trial court denied Mother’s motion. In its order, the
trial court chose simply to skip over the first sentence of Section 2313(a) (which
mandates counsel in contested TPR cases) in favor of that provision’s second
sentence, which “gives this Court the discretion to appoint counsel or a GAL to
represent any child who has not reached 18 years and is subject to any other
proceeding under this part whenever it is in the best interests of the child.” Order,
9/9/2015 (emphasis added). The trial court stated that, because the GAL had an
established relationship with the children, the GAL’s representation would best suit the
children’s interests. Id.
The trial court held hearings on the TPR petition. At the start of the proceedings,
the trial judge interviewed A.D.M. A.D.M. was equivocal about his desire to be reunited
with Mother. He testified that he knew that Mother cared about him, but that he
nonetheless was disappointed by her inability to maintain sobriety. He further stated
that he probably would choose his foster family. N.T., 9/15/2015, at 10-11. A.D.M.
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expressed his desire for a final decision and his wish that, regardless of the outcome,
he be allowed to maintain contact with both Mother (and her family) and his foster
family. Id. at 17-18, 154. A.D.M.’s permanency worker testified that A.D.M.’s “first wish
is always going to be with his mom.” Id. at 161. The trial court recognized that A.D.M.’s
bond with Mother was much stronger than L.B.M.’s, and that A.D.M. would be affected
adversely by the termination. However, the trial court found that A.D.M. also had a
strong bond with his foster parents, and that it was in A.D.M.’s best interests to sever
the bond with Mother because his most important need was permanency. See id. at 17-
18 (A.D.M. testifying that he just wanted a decision).
The trial court filed its findings of fact and decree on September 25, 2015. By
that decree, the trial court terminated Mother’s parental rights, finding that Mother had
not remedied the conditions leading to the children’s placement. In assessing the
children’s best interests, the court found that L.B.M.’s primary bond was with his foster
parents, whom he considered to be his parents, although L.B.M. did have some bond
with Mother. Decree, 9/25/2015, at 13.
Mother filed a notice of appeal and a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2)(ii) and (b). Mother alleged that the trial
court erred in denying Mother’s motion for the appointment of counsel, and that the trial
court abused its discretion in terminating Mother’s parental rights. We first address the
appointment of counsel.
In support of its decision to deny Mother’s motion, the trial court relied upon In re
K.M., 53 A.3d 781 (Pa. Super. 2012), in which the Superior Court held that Section
2313(a) did not require appointment of an attorney when a GAL, who was an attorney,
had been appointed. Trial Court Opinion, 12/7/2015, at 22-24. In K.M., the Superior
Court addressed a TPR determination involving a three-year-old child who had never
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been in the parents’ care. K.M., 53 A.3d at 783-84. The trial court elected not to
appoint counsel for the child pursuant to Section 2313(a), although a GAL, who was an
attorney, had been appointed. Id. at 786. The mother appealed this decision. The
Superior Court identified the purpose of the section as “protect[ing] the interests of the
child. Implicit in this appointment of counsel is a recognition that the interests of the
child may be very different than or diverge from the interests of the other parties . . . .”
Id. at 787.
The Superior Court concluded that Section 2313(a)’s requirements were not
clear and unambiguous as applied to circumstances when the appointed GAL was an
attorney. Even though the second sentence of the statute did not apply to the case, the
Superior Court opined that the use in that sentence of the disjunctive “counsel or
guardian ad litem” indicated that the legislature deemed “it would be superfluous to
appoint both counsel and an attorney serving as guardian ad litem” in most cases. Id.
Further, the K.M. court relied upon the comment to Section 2313(a), noting that a GAL
could be someone other than an attorney, to bolster its conclusion that the legislature
did not intend for both an attorney-GAL and an attorney to be appointed. Id. at 787-88.
Finally, the K.M. court did not discern anything in the statute that precluded the GAL
from acting simultaneously as legal counsel. Id. at 788. Accordingly, the Superior
Court affirmed the trial court’s refusal to appoint counsel in addition to the GAL. Id.
Based upon K.M.’s reasoning, the trial court here decided that it did was not
required to appoint counsel other than the GAL.7 A divided panel of the Superior Court
affirmed upon the basis of the trial court’s opinion. In re: Adoption of L.B.M., 1834 MDA
7
Mother filed a separate motion to appoint counsel for each child (and at each
docket number). It is unclear to us whether Mother sought the appointment of one
attorney for both children or the appointment of separate counsel for each child.
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2015, 2016 WL 3080124 at *6 (Pa. Super. May 31, 2016) (unpublished). In dissent,
Judge Strassburger opined that K.M. was distinguishable because of A.D.M.’s age
(eight at the time of the hearing) and because of A.D.M.’s expressed wish to return to
Mother, a wish which conflicted with the GAL’s position. Id. at *33-34 (Strassburger, J.,
dissenting). Judge Strassburger also observed that Section 2313(a) “suggest[ed] that
the legislature intended to differentiate between legal counsel and GAL in TPR
proceedings.” Id. at *34.
Presently, Mother argues that K.M. was wrongly decided. Brief for Mother at 7.
Mother contends that the second sentence of Section 2313(a), upon which the K.M.
Court relied, does not apply to contested involuntary TPR hearings and is thus irrelevant
to the case. If anything, Mother contends, the second sentence proves that the General
Assembly recognized the distinct roles that a GAL and an attorney play. Accordingly,
Mother argues that the use of the term counsel in the first sentence means a “client-
directed” attorney who represents the child’s legal interests and not a GAL who
happens to be an attorney and seeks to vindicate the child’s best interests. Id. at 8.8
The GAL argues that, although Section 2313(a)’s purpose is “to ensure that the
needs and welfare of a child will be actively advanced by an advocate who owes loyalty
only to the child,” a GAL, representing the child’s best interests, is able to advocate for
the child. Brief for GAL at 22 (quoting In re Adoption of G.K.T., 75 A.3d 521, 527 (Pa.
Super. 2013)). The GAL asserts that the age and development of a child may make it
8
Three amicus curiae briefs were filed in support of Mother. See Brief of Juvenile
Court Project; Brief of Community Justice Project; Brief of Juvenile Law Center,
American Civil Liberties Union of Pennsylvania, Community Legal Services, Inc.,
National Association of Counsel for Children, National Coalition for a Civil Right to
Counsel, and Pennsylvania Legal Aid Network. All three amici argue that Section
2313(a) is unambiguous, highlight differences between legal and best interests and the
potential conflicts inherent therein, and provide policy justifications for providing counsel
for the child.
[J-119A-2016 and J-119B-2016] - 9
impossible for an attorney to be client-directed. The GAL contends that, since the GAL
often has represented the child’s best and legal interests pursuant to the Juvenile Rules
in dependency, that dual role should continue through the termination process. Id. at
23.
CYS also argues that, because Section 6311 contemplates the GAL’s advocacy
on behalf of both the best interests and the legal interests of the child in dependency
cases, it would be inefficient not to extend that dual role into and through TPR
proceedings. Brief for CYS at 30-32.9 CYS points to potential problems with the
mandatory appointment of counsel in addition to a GAL, such as the children’s age and
capacity to form and express preferences and the possible need for separate attorneys
for each of multiple children in a family when children’s legal interests diverge. Id. at 32-
33.
II. Analysis
A. Appointment of Counsel
Because our resolution of this issue necessarily requires us to interpret Section
2313(a), our standard of review is de novo. Gilbert v. Synagro Cent., LLC, 131 A.3d 1,
10 (Pa. 2015).
The purpose of statutory interpretation is to ascertain the General
Assembly’s intent and give it effect. 1 Pa.C.S. § 1921(a). In discerning
9
CYS suggests briefly that this appeal should be dismissed because the issue of
counsel for the children was not raised in the first TPR proceedings and because
Mother did not immediately appeal the denial of counsel. Brief for CYS at 18. CYS
cites no rule or decisional law to support this contention. Because this request has not
been developed, we will not review it. See Commonwealth v. Spotz, 18 A.3d 244, 262
n.9 (Pa. 2011) (“This sub-claim has not been developed factually or legally, and it is not
supported with citations to relevant decisional or statutory law . . . it is waived for lack of
development.”).
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that intent, the court first resorts to the language of the statute itself. If the
language of the statute clearly and unambiguously sets forth the
legislative intent, it is the duty of the court to apply that intent to the case
at hand and not look beyond the statutory language to ascertain its
meaning. See 1 Pa.C.S. § 1921(b) (“When the words of a statute are
clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.”). “Relatedly, it is well established
that resort to the rules of statutory construction is to be made only when
there is an ambiguity in the provision.” Oliver v. City of Pittsburgh, 11 A.3d
960, 965 (Pa. 2011) (citations omitted).
Mohamed v. Commonwealth, Dep’t of Transp., Bureau of Motor Vehicles, 40 A.3d 1186,
1193 (Pa. 2012) (citation modified).
The language of Section 2313(a) at issue in this contested TPR case reads, in
pertinent part, “The court shall appoint counsel to represent the child . . . .” “The word
‘shall’ by definition is mandatory and it is generally applied as such.” Chanceford
Aviation Props., L.L.P. v. Chanceford Twp. Bd. of Supervisors, 923 A.2d 1099, 1104
(Pa. 2007) (citation omitted). When a statute is unambiguous, “shall” must be construed
as mandatory. Id. Here, the use of “shall” is unambiguous and hence, mandatory. The
statutory language does not suggest anything other than the general meaning of the
word. By contrast, the statute’s second sentence uses the term “may” in connection
with “any other proceeding” (i.e., anything other than a contested TPR) evidencing the
fact that our General Assembly knows well how to use non-mandatory language when it
wishes to do so. The lawmakers codified a mandatory appointment of counsel for
contested TPR cases, and, in the very next sentence, codified a discretionary provision
for other proceedings.10 There is no ambiguity in the statute. We may not manufacture
one.
10
My learned colleague Justice Mundy agrees that the first sentence of the statute
controls this case, Mundy, J., dissenting. at 2-3, but asserts that we are “mistakenly
reading the first and second sentences in conjunction with each other.” Id. at 3. To the
contrary, we acknowledge the second sentence only to demonstrate that the General
Assembly recognized the difference between counsel and a GAL.
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As well, it bears noting that the recognized purpose of the statute is to ensure
that the needs and welfare of the children involved are actively advanced.11 To hold
otherwise would afford courts the discretion to deny counsel to children involved in
contested TPR proceedings, which not only would disserve the purpose of the statute,
but also would contradict its express terms.
“Counsel” also is clear and unambiguous. The second sentence of the statute is
instructive, inasmuch as it demonstrates that the legislature recognized and understood
the difference between counsel and a GAL. In cases other than involuntary (i.e.,
contested) TPRs, the General Assembly has instructed that either counsel or a GAL
adequately can represent the child’s interests. However, when a child’s relationship
with his or her birth family could be severed permanently and against the wishes of the
parents, the legislature made the policy judgment, as is evident from the plain,
unambiguous language of the statute, that a lawyer who represents the child’s legal
interests, and who is directed by the child, is a necessity. It is not our role to second-
guess the policy choice made and expressed by the General Assembly. Nor is the
legislative choice surprising; appointment of client-directed counsel optimizes the
11
In In re Adoption of N.A.G., 471 A.2d 871 (Pa. Super. 1984), the Superior Court
explained that the statutory requirement for appointment of counsel was the legislative
answer to Justice Manderino’s dissenting statements in Matter of Kapcsos, 360 A.2d
174 (Pa. 1976) and In re Thomas, 99 A.2d 1063 (Pa. 1979), that, because the
legislature had not provided for the appointment of counsel for children, the courts must
do so. Id. at 874 n.2. See In re Adoption of Hess, 562 A.2d 1375, 1381 (Pa. Super.
1989) (“[t]he purpose of 2313(a) is to ensure that the needs and welfare of a child will
be actively advanced by an advocate who owes loyalty only to the child.”) (emphasis in
original). Justice Mundy attempts to distinguish Hess by quoting its invocation of the
child’s best interests. Mundy, J., dissenting at 5. This is wholly uncontroversial, but,
respectfully, it misses the point. The issue here is not whether or not the child’s best
interests must be served (they must), but rather whether the General Assembly’s
mandate that counsel must be appointed for the child may be subverted or ignored (it
may not).
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protection of the child’s needs and welfare, which form the ultimate issue that the trial
court must resolve before granting the TPR. Because the statute is clear and
unambiguous, and because the application of the plain language gives effect to the
General Assembly’s intent, we hold that Section 2313(a) requires the appointment of
counsel who serves the child’s legal interests in contested, involuntary TPR
proceedings.12
B. Service of GAL as Counsel
Having determined that the court must appoint counsel to represent the child’s
legal interest, we next consider whether a GAL may serve in that role. Because the
GAL is familiar with the case and has represented the child’s legal interests in the
dependency case to the extent permitted by Pa.R.J.C.P. 1154 and Section 6311, there
is some facial appeal in pressing (or allowing) the GAL into service as the child’s
counsel for the TPR proceedings.13 Moreover, because the Adoption Act does not
12
Justice Mundy contends that there is no reason to conclude that section 2313(a)
requires representation of “the child’s legal interests, and not best interests.” Mundy, J.,
dissenting at 4. However, the General Assembly chose to use the term “counsel.” Had
the General Assembly believed that an attorney representing both best and legal
interests of the child would be sufficient to protect all of a child’s interests, it certainly
could have imported language into the Adoption Act similar to that utilized in the
dependency statute, see 42 Pa.C.S. § 6111(b)(9), in which the legislature authorized a
GAL to represent both species of interests. It did not do so, signaling its clear intention
that section 2313(a) counsel must represent the child’s legal interests.
13
The GAL only represents the child’s legal interests to the extent permitted by rule
and statute within the limited context of the dependency proceedings, and only to the
extent that there is no conflict with the GAL’s determination and advocacy of the child’s
best interests. In contested TPR proceedings, per the General Assembly’s directive, no
attorney is assigned to represent the child’s best interests. Respectfully, my learned
colleague Justice Baer’s desire to “allow[ ] the child to have continuity of representation
between the dependency and termination proceedings. . .,” Baer, J., dissenting at 7,
obscures this distinction and conflates the roles of GAL and counsel for the child. In
context, this “continuity” becomes a mechanism by which the child is judicially divested
of the independent attorney that the General Assembly has mandated for that child.
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require the appointment of a GAL, it might be suggested that the dependency GAL
would not have to act as GAL during the TPR and could serve solely as the child’s
lawyer in that latter proceeding, converting, as it were, to the “counsel” role specified by
statute. But practical concerns militate against such dual service for the GAL. First, if
the dependency GAL also was appointed as counsel for the TPR, all of those involved
— the court, the lawyers, the parties, the agencies — would have to be clear about the
distinction between the roles: to wit, that the GAL advocates for the child’s best interests
while counsel advocates for the child’s legal interests. That change in roles, and the
subtle yet important distinction between those roles, has the potential to breed
confusion for the child as well as other parties. Second, the dependency proceedings
generally remain ongoing when the TPR petition is filed and may well continue, as they
indeed did here, in the event that the petition is denied. To permit the dependency GAL
to serve also as the TPR counsel while proceedings in each matter are ongoing
increases the risk of confusion and may force the attorney to take conflicting stances in
the proceedings depending on the role being performed at the time. These concerns
argue against the GAL serving additionally in the distinct role of TPR counsel.
We recognize that providing a new attorney as counsel for the child carries a
cost. In addition to an appointed counsel’s fee, there may be delays while counsel
prepares for the TPR proceedings and interviews the child and any other parties or
witnesses. In some cases, the child may be too young to express his or her wishes. In
other cases, as CYS notes, an attorney, guided by Pa.R.P.C. 1.7 (Conflicts of Interest),
may determine that he or she ethically cannot represent multiple children in a family
because the children’s legal interests diverge. However, the language of Section
2313(a) is clear. The General Assembly has made the policy decision that these are
the costs of ensuring that a child is represented adequately during a contested,
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involuntary TPR proceeding. Recognizing the legislative will, and in view of the risks
posed by dual representation with conflicting oligations, the dependency GAL should
not be employed as the child’s counsel in TPR proceedings. 14
Here, the trial court denied Mother’s motion to appoint counsel, citing the
inapplicable second sentence of Section 2313(a) and finding that the GAL could
represent the children’s interests. The court erred in failing to appoint counsel for the
children. It was clear that the GAL was representing the children’s best interests and
not their legal interests. See N.T., 10/24/2014, at 59 (GAL at closing of first TPR
proceeding stating, “So I can’t say that I don’t appreciate [A.D.M.’s] position [that he
wants to return to Mother]. But I don’t believe at this point he understands what’s best
for him.”). Section 2313(a) requires counsel to advocate on behalf of the children’s
legal interests. Counsel was not appointed here. Therefore, the Superior Court erred in
affirming the trial court. To the extent that K.M. does not align with our holding, that
decision was erroneous and is overruled.
C. Treatment of Error
Having found that the trial court erred, we must next determine the effect of that
error. The GAL suggests that, if error, the failure to appoint counsel was harmless.
14
Justice Baer suggests that the dependency GAL, bound by Pa.R.P.C. 1.7, could
continue to represent the child in the TPR hearing because the dependency GAL would
be required to seek appointment of counsel should there be a conflict of interest. Baer,
J., dissenting, at 8. This essentially would make the GAL the arbiter of the child’s right
to counsel. The right belongs to the child. That child generally is not in a position to
assert, much less to advocate, the presence of a conflict of interest. By mandating
counsel who represents the child’s legal interest in TPR proceedings, the General
Assembly sought to vindicate and protect the child’s right to counsel. Justice Baer
maintains that “no universal disqualifying impediment exists to prevent a dependency
proceeding GAL Attorney” from switching hats in order to represent a child’s legal
interests at a TPR hearing. But such an impediment does in fact exist, and we are not
authorized to wish it away. It is Section 2313(a) of the Adoption Act.
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Brief for GAL at 43-44. CYS concurs. Brief for CYS at 36. Mother does not address
the issue directly. She asserts merely that the error justifies a new hearing. Brief for
Mother at 15.
The most developed treatment of the issue lies in the amicus curiae brief
submitted jointly by the Juvenile Law Center, the American Civil Liberties Union of
Pennsylvania, Community Legal Services, Inc., the National Association of Counsel for
Children, the National Coalition for a Civil Right to Counsel, and the Pennsylvania Legal
Aid Network (hereinafter, collectively, “Juvenile Law Center”). The Juvenile Law Center
notes that, in criminal proceedings, denial of counsel is deemed a structural error,
requiring reversal without the need to demonstrate prejudice. Id. at 27-28. The
Juvenile Law Center asserts that courts generally have extended other criminal law
protections to TPR cases because of the importance of the right involved in termination,
and maintains that we should deem the failure to appoint counsel a structural error. Id.
at 28-29. The rationale for structural error’s applicability to criminal cases applies
equally to TPR cases, according to the Juvenile Law Center. To wit, it is impossible to
determine the effect that counsel who was not present would have had and to attempt
to gauge the harmfulness of the failure to appoint counsel.15 To do so would be an
exercise in speculation. Id. at 30-31. Further, the absence of counsel “calls into
15
While he agrees that failure to appoint counsel is a structural error, Baer, J.
dissenting, at 8, Justice Baer nonetheless suggests that remand is unnecessary in this
case because “the record does not support Mother’s assertion that a conflict of interest
existed between A.D.M.’s legal and best interests during the second termination
proceeding.” Id. at 9-10. We cannot know how the record was impoverished by the
failure of the trial court to comply with the statute’s requirements that A.D.M. be
provided with counsel charged with representing his legal interests. Counsel
representing A.D.M.’s legal interests may have developed testimony from A.D.M. that
was less equivocal about his wishes. It is this very speculation that shows the
impossibility of determining post hoc the effect of the failure to appoint counsel and that
compels the conclusion that this failure was structural error.
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question the very structural integrity of the fact-finding process.” Id. at 31-32 (quoting In
re J.M.B., 676 S.E.2d 9, 12 (Ga. Ct. App. 2009)). For these reasons, the Juvenile Law
Center advocates that a harmless error approach is untenable.
A structural error is defined as one that affects “the framework within which the
trial proceeds, rather than simply an error in the trial process itself.” Commonwealth v.
Baroni, 827 A.2d 419, 420 (Pa. 2003) (quoting Arizona v. Fulminante, 499 U.S. 279,
310 (1991)). Structural errors are not subject to harmless error analysis. Id.
Generally, denial of counsel is a structural error, see Commonwealth v. Martin, 5 A.3d
177, 192 (Pa. 2010); although such error usually stems from deprivation of a
constitutional right to counsel. Here, by contrast, the right to counsel is statutory.
Nonetheless, we do not find that distinction to be determinative. The same concerns
are evident regardless of the derivation of the right. Whether the right to counsel is
conferred by constitution or statute, the right having been conferred must be protected.
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. For all of these reasons, we
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hold that the failure to appoint counsel for a child involved in a contested, involuntary
termination of parental rights proceeding is a structural error and is not subject to
harmless error analysis.
Because the trial court erred in failing to appoint counsel for the children, and
because that error is structural, we remand for a new TPR proceeding following the
appointment of counsel. Because of the remand, we need not reach, and we express
no opinion regarding, Mother’s challenge to the trial court’s finding on the merits that
Mother’s parental rights should be terminated.
Justices Donohue and Dougherty join the opinion.
Chief Justice Saylor files a concurring opinion in which Justice Todd joins.
Justice Baer files a dissenting opinion in which Justice Mundy joins.
Justice Mundy files a dissenting opinion in which Justice Baer joins.
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