In re Adoption of LBM and ADM: A Child and His Counsel

A child’s legal interests are not the same as his best interests, and in proceedings for the Termination of Parental Rights, the child has a statutory right to counsel for the former, even if he already has a guardian ad litem for the latter. The holding in this case, which arises out of a Child and Youth Services (“CYS”) petition in Franklin County (home of John Brown’s Hideout), was a 5-2 decision upholding a child’s right to an attorney in Termination of Parental Rights proceedings to advocate for the child’s “preferred outcome” in the litigation.

Due to Mother’s frequent imprisonment over the course of several years, CYS petitioned the court for a Termination of Parental Rights. A licensed attorney was appointed as guardian ad litem, but Mother wanted her children to have independent counsel, as well, to determine what the children wanted, not merely what was in their “best interest” from a public policy point of view. The Court was called on, in this case, to determine whether the appointment of an attorney as a guardian ad litem satisfied 23 Pa.C.S. 2313(a)’s requirement of the appointment of counsel for a minor.

Majority Opinion: Where a Conflict of Interest Exists Between Counsel’s Role as Guardian and Advocate, Separate Counsel Must be Appointed

Justice Wecht wrote for the majority, and focused on the statutory language in 23 Pa.C.S. § 2313(a): “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.” [emphasis mine]. The statute goes on to allow that “The court may appoint counsel or a guardian ad litem . . . [in] any other proceeding . . . .” [emphasis mine]. The majority repudiated the trial court’s holding that the appointment of a guardian ad litem who was a licensed attorney satisfied the requirement of “counsel” in the first sentence. Indeed, the trial court leapt straight over the first sentence and asserted its right to appoint counsel or a guardian ad litem, apparently ignoring the “any other proceeding” language modifying these instructions.

Wecht lays out a two-tiered approach to the statute; in the first sentence, the appointment of counsel is unambiguously prescribed. The second sentence, referring to “other proceeding[s],” allows for counsel or a guardian ad litem. The either/or approach of the second sentence “demonstrates that the legislature recognized and understood the difference between counsel and a [guardian ad litem].” The potential for conflict between the guardian ad litem’s role as detached analyst of the best interests of the child and the same attorney’s role as zealous advocate for the client created the risk that children would be effectively deprived of their statutory right to an attorney in a proceeding determining whether they would be permanently kept from their parents. In this proceeding, that line was unambiguously crossed because the guardian ad litem advocated for terminating parental rights, but A.D.M. testified (though somewhat equivocally) that he did not want to be permanently separated from his mother’s custody.

The opinion becomes a bit confusing at this point, as part II(B) of the main opinion becomes only a plurality as to this section (although Chief Justice Saylor’s concurrence still refers to this section as the “majority”). Putting together the plurality opinion in II(B) with the concurrence of Saylor and Todd, the Court essentially concludes that the trial court failed to inquire as to whether the guardian ad litem could represent the legal interests of the child along with the child’s best interests, though a frustrating ambiguity remains as to the proper procedure for determining whether a conflict exists. Justice Baer’s dissent ironically offers the clearest guidance on this point.

The majority goes on to conclude that the error of the trial court in refusing to appoint counsel for the minor children was “structural,” and while emphasizing that the children’s right to counsel was statutory, not constitutional, the majority found that the error could only be remedied by a remand and a new hearing with counsel.

Concurrences and Dissents: No Conflict of Interest Per Se, Should be Handled Case by Case

Saylor concurred in the result because the trial court failed to conduct the necessary conflict of interest inquiry. But the Chief Justice “believe[s] such a rigid rule [as laid out by the plurality] is not required by either the language of the statute or any other considerations relating to counsel’s role in legal proceedings,” and would prefer the determination be made on a “case-by-case basis, subject to the familiar and well-settled conflict of interest analysis.” Note that this approach, though labeled a “concurrence,” appears to be the actual holding of this case.

Justice Baer’s dissent argues that the majority’s textualism has gone awry, and avers that the majority has read a conflict of interest per se into the statute where none exists. Baer goes into a well-researched discussion of juvenile law, and demonstrates that a conflict of interest does not necessarily exist between representing a child’s legal and best interests. Indeed, in dependency proceedings, “the [guardian ad litem] represents the legal interests and best interests of the child at every stage of the proceedings.” Baer op., citing 42 Pa.C.S. § 6311(b). Baer would prefer trial courts make an on the record determination whether a conflict exists, and would generally allow a guardian ad litem to serve as counsel where no conflict is found.

Finally, Justice Mundy argues “that the majority is mistakenly reading the first and second sentences [of the statute] in conjunction with each other, which has the effect of changing the meaning of the first sentence.” While emphasizing the value and importance of professional representation of children in termination hearings which carry “the highest level of finality,” Mundy argues the legislature’s “inclusion of an option to solely appoint a non-attorney GAL in other proceedings does not necessarily render the appointment of a GAL attorney a violation” of the statute. Furthermore, Mundy’s dissent highlights the practical impact on judicial economy that will result from this case in that an additional attorney must now be found to represent a child’s legal interests–even where the child is not old enough to express any views. “It is my view such dual representation is both unnecessary and taxing to the system, and undermines continuity of representation for the children.”

Conclusion: Does this Statutory Right to Counsel Belong to the Parent or the Child?

One interesting wrinkle to this case is seen in footnote seven, where Wecht notes that Mother moved for the appointment of counsel for the children, and that “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.” More unclear to the rest of us, however, is if a child’s right to counsel can only be asserted by the contesting parent. The statute only requires counsel where there is a parent contesting the action.

If the right to counsel is the child’s, can the child assert it? Or may only the parent contesting the TPR assert the child’s right to counsel, as the parent is the wellspring of the child’s statutory right to counsel? And if a young child does not assert his own right to counsel, is the right waived, or can we assume a child would never know of his right to counsel unless told by the court of the right? These questions are left unaddressed under these facts, but may make an interesting case down the road.