Summary
The Pennsylvania Supreme Court addresses whether a child’s attorney-guardian ad litem may also represent the child’s legal interests in a contested termination-of-parental-rights proceeding. The Court holds that the failure to appoint separate counsel is non-waivable, but separate counsel is not required when the child is too young to express an ascertainable preference and no conflict exists between the child’s legal and best interests. The Court also rejects a legal presumption that a preverbal child opposes termination.
Topics
Practice areas
Questions Presented
- Whether Mother's failure to request separate counsel for the children's legal interests in the trial court waived the statutory-counsel issue on appeal.
- Whether Section 2313(a) of the Adoption Act requires appointment of counsel separate from an attorney-guardian ad litem in every contested involuntary termination-of-parental-rights proceeding.
- Whether an attorney-guardian ad litem who advocates for the best interests of very young, pre-verbal children may also represent their legal interests when the children's preferences cannot be ascertained.
- Whether the trial court erred by allowing KidsVoice to serve as the children's sole representative in the termination proceeding.
Holdings
- The child's statutory right to appointed counsel under 23 Pa.C.S. § 2313(a) is not waivable when no attorney representing solely the child's legal interests was appointed and the child could not raise the issue personally.
- During a contested termination-of-parental-rights proceeding, when the child's legal interests and best interests do not conflict, an attorney-guardian ad litem representing the child's best interests may also represent the child's legal interests under Section 2313(a).
- When a child's preferred outcome is incapable of ascertainment because the child is very young and pre-verbal, there is no conflict between the child's legal interests and best interests, and an attorney-guardian ad litem advocating for the child's best interests satisfies Section 2313(a).
- The trial court did not err because the children were too young to express an ascertainable preference and KidsVoice, through its attorney-guardian ad litem, represented their best interests.
Key quotations
“As illustrated by the present dispute, moreover, if the preferred outcome of a child is incapable of ascertainment because the child is very young and pre-verbal, there can be no conflict between the child's legal interests and his or her best interests” (at 1092-93)
“We additionally reaffirm certain principles agreed upon by a majority of Justices in L.B.M., namely, that during contested termination-of-parental-rights proceedings, where there is no conflict between a child's legal and best interests, an attorney-guardian ad litem representing the child's best interests can also represent the child's legal interests.” (at 1092-93)
Factual background
T.S. and E.S. were removed from Mother's care after CYF observed continuing drug use, unsafe conditions in the home, inadequate parenting, and failure to address the children's medical and developmental needs. The children were adjudicated dependent and placed with foster parents, while KidsVoice represented their legal and best interests during the dependency proceedings and continued to represent them in the termination proceedings. At the termination hearing, the children were approximately two and three years old and were too young to express an ascertainable preference regarding termination; the trial court terminated Mother's parental rights after finding statutory grounds and that termination served the children's needs and welfare.
Procedural history
The children were adjudicated dependent and placed in foster care after CYF determined that Mother's drug use, inadequate parenting, and unsafe home conditions placed them at risk. The common pleas court terminated Mother's parental rights under 23 Pa.C.S. § 2511(a)(2), (5), and (8), finding termination served the children's needs and welfare. Mother raised the separate-counsel issue for the first time on appeal after the Supreme Court decided In re Adoption of L.B.M.; the Superior Court affirmed, and the Supreme Court affirmed the Superior Court.