J-E01005-19
2019 PA Super 281
IN RE: ADOPTION OF K.M.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.L.G., MOTHER :
:
:
:
:
: No. 580 WDA 2018
Appeal from the Decree March 5, 2018
In the Court of Common Pleas of McKean County Orphans' Court at
No(s): 42-17-0239
IN RE: ADOPTION OF: A.M.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.L.G., MOTHER :
:
:
:
:
: No. 581 WDA 2018
Appeal from the Decree March 5, 2018
In the Court of Common Pleas of McKean County Orphans' Court at
No(s): No. 42-17-0240
IN RE: ADOPTION OF S.A.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.L.G., MOTHER :
:
:
:
:
: No. 582 WDA 2018
Appeal from the Decree March 5, 2018
In the Court of Common Pleas of McKean County Orphans' Court at
No(s): No. 42-17-0241
IN RE: ADOPTION OF J.C.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
J-E01005-19
APPEAL OF: T.L.G., MOTHER :
:
:
:
:
: No. 583 WDA 2018
Appeal from the Decree March 5, 2018
In the Court of Common Pleas of McKean County Orphans' Court at
No(s): 42-17-0242
BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., OLSON, J., DUBOW,
J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., and McLAUGHLIN,
J.
DISSENTING OPINION BY BENDER, P.J.E.: FILED SEPTEMBER 13, 2019
Because I would conclude that this Court, in this case, has the authority
to review sua sponte whether the Guardian ad Litem (GAL) has a conflict in
an involuntary termination of parental rights case, I respectfully dissent.
The Majority identifies Section 2313 of the Adoption Act, which requires
a court to appoint counsel to represent a child in an involuntary termination
of parental rights proceeding when either one or both parents are contesting
such a determination. See 23 Pa.C.S. § 2313(a). The Majority also cites
recent cases dealing with situations where a GAL has a conflict and, thus, may
not serve as GAL and counsel for a child, i.e., representing both the child’s
best interests and his or her legal interests. Moreover, the Majority recognizes
that the GAL has a duty to notify the court if a conflict is present in the case
and the court then has a duty to appoint separate counsel in those
circumstances. However, the Majority concludes that this Court “only has the
authority to raise sua sponte the issue of whether the lower court appointed
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any counsel for the child, and not the authority to delve into the quality of the
representation.” Majority at 5 (emphasis in original). I disagree.
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.
Additionally, in response to the Majority’s discussion relating to whether
an issue can be raised sua sponte by this Court, I am aware that no case has
definitively determined that we are permitted to do so in a termination of
parental rights situation. However, there are also no cases that have
prohibited this action. To provide further support for the reasons that we
should perform this duty, I rely on Commonwealth v. Stossel, 17 A.3d
1286, 1290 (Pa. Super. 2011), a case that held “that where an indigent, first-
time PCRA petitioner was denied his right to counsel—or failed to properly
waive that right—this Court is required to raise this error sua sponte and
remand for the PCRA court to correct that mistake.” The right to counsel in
conjunction with a first-time PCRA petition is provided for in Pa.R.Crim.P.
904(C). Likewise, as noted above, in a termination proceeding, the
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appointment of counsel for the child is provided for by 23 Pa.C.S. § 2313. The
Court in Stossel explained its reasoning as follows:
While the right to legal representation in the PCRA context is not
constitutionally derived, the importance of that right cannot be
diminished merely due to its rule-based derivation. In the post-
conviction setting, the defendant normally is seeking redress for
trial counsel’s errors and omissions. Given the current time
constraints of 42 Pa.C.S. § 9545, a defendant’s first PCRA petition,
where the rule-based right to counsel unconditionally attaches,
may well be the defendant’s sole opportunity to seek redress for
such errors and omissions. Without the input of an attorney,
important rights and defenses may be forever lost.
Stossel, 17 A.3d at 1288 (quoting Commonwealth v. Robinson, 970 A.2d
445, 458-59 (Pa. Super. 2009)).
Thus, the Stossel decision shows that the importance of the right to
counsel in the PCRA context allows this Court to raise the issue sua sponte.
Nothing the Majority has discussed convinces me that a child’s statutory right
to counsel in a termination case is any less important than an inmate’s rights
when seeking PCRA relief. See In re Adoption of L.B.M., 161 A.3d 172, 180
(Pa. 2017) (stating that “appointment of client-directed counsel optimizes the
protection of the child’s needs and welfare, which form the ultimate issue that
the trial court must resolve before granting the termination”). In both
situations, where a statutory right to counsel attaches, a failure to correct
such an error at this juncture may be the only opportunity to correct a possible
injustice. By not allowing this Court to review sua sponte whether a conflict
exists as to a child’s representation in the termination of parental rights
proceeding, we are potentially allowing the permanent severing of a child’s
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relationship with his or her birth family without protecting his or her legal
rights and best interests. “The duty to protect the rights of minors and
incompetents has 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].” Berry v. Berry, 197 A.3d 788, 797 (Pa. Super.
2018) (quoting South Carolina Dept. of Social Services v. Roe, 371 S.C.
450, 639 S.E.2d 165, 172 (2006) (emphasis omitted)).
It is this Court’s obligation to ensure that a child’s rights are protected
along with the integrity of the proceeding. If we find that a conflict appears
to exist between the legal interests and best interests of the child, we may
sua sponte order a remand for such a determination by the trial court based
on the facts in the record. Likewise, if the record does not contain anything
to support whether a conflict exists or does not exist, the trial court must
receive evidence to support either position and render a decision.
Here, the trial court’s order, dated January 8, 2018, appointed Mark
Hollenbeck, Esq., to represent both the legal and best interests of the children
in this case. Simply providing for a ten-day period to allow any of the parties
to object to this appointment without a factual basis in the record for the order
is insufficient. Did Attorney Hollenbeck interview the children and determine
whether any conflicts existed between their legal and best interests or from
one child to the other children, and had he reported such facts to the court?
Merely allowing an objection to be raised in response to the order is insufficient
because the right to counsel belongs to the children, not to a parent or an
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agency. Additionally, I would conclude that the trial court abused its discretion
by entering the order limiting to ten days the time in which the parties could
object to the appointment of the GAL. It is entirely possible that one or more
of the children could change their mind after the expiration of that period and
a conflict for the GAL would be present.
Because I would conclude that this Court, in this case, may raise the
conflict issue sua sponte, I would remand this case for the trial court to
determine if any conflict exists and provide the basis for that determination.
Accordingly, I dissent.
Judges Kunselman and McLaughlin join this dissenting opinion.
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