In re K.M.G.
| Decision Date | 10 November 2020 |
| Docket Number | No. 57 WAP 2019,No. 55 WAP 2019,No. 58 WAP 2019,No. 56 WAP 2019,55 WAP 2019,56 WAP 2019,57 WAP 2019,58 WAP 2019 |
| Citation | 240 A.3d 1218 |
| Parties | IN RE: ADOPTION OF K.M.G. Appeal of: T.L.G., Mother In re: Adoption of: A.M.G. Appeal of: T.L.G., Mother In re: Adoption of S.A.G. Appeal of: T.L.G., Mother IN RE: ADOPTION OF J.C.C. APPEAL OF: T.L.G., MOTHER |
| Court | Pennsylvania Supreme Court |
For the third time in four years, we address the appointment of counsel to represent children in contested termination of parental rights proceedings pursuant to Section 2313(a) of the Adoption Act, 23 Pa.C.S. § 2313(a).1 As we have previously recognized, " Section 2313(a) requires that the common pleas court appoint an attorney to represent the child's legal interest, i.e. the child's preferred outcome," and the failure to appoint counsel constitutes structural error in the termination proceedings. In re T.S. , 648 Pa. 236, 192 A.3d 1080, 1082 (2018). We reiterate that an attorney appointed as counsel to represent a child's legal interests may also serve as the child's guardian ad litem ("GAL"), responsible for asserting the child's best interests, so long as the child's legal interests do not conflict with the attorney's view of the child's best interests. Id.
In this case, we consider issues relating to appellate review of a trial court's appointment of legal counsel under Section 2313(a). For the reasons set forth below, we conclude that, while an appellate court should verify that the orphans’ court appointed counsel to represent the child's legal interests, it may not assess sua sponte the performance of that representation. After review, we affirm the decision of the Superior Court, which affirmed the termination of parental rights in this case.
The issue before this Court involves a question of law related to whether, and how, an appellate court should review sua sponte appointed counsel's representation of children's legal interests in a termination of parental rights proceeding. Specifically, we address, inter alia , whether reviewing courts must determine sua sponte whether a conflict existed in an attorney's representation of a child's best interests and legal interests and whether counsel's advocacy for the child's legal interests included placing the child's preferred outcome on the record. As applied to the case at bar, the parties dispute whether a remand is necessary to determine if the appointed counsel suffered from a conflict in representing the children's legal interests and best interests and for the placement of the children's preferred outcomes on the record. Notably, the merits of the termination of parental rights in this case are not before this Court. Nevertheless, we briefly address the facts leading to the termination proceeding to provide context to the questions surrounding the children's representation in this case.
Appellant T.L.G. ("Mother") is the mother of four children: A.M.G., S.A.G., K.M.G., and J.C.C. (collectively "the Children").2 At the time of the termination of parental rights hearing, the children were eight, six, five, and two years old, respectively. The Juvenile Court in McKean County became involved with the family in August 2015, when the McKean County Children and Youth Services ("CYS") filed dependency petitions for all four children, as a result of their parents’ inability to provide proper care, especially in regard to their medical care and school attendance.3
Specifically, CYS observed that Mother was unable to control chronic lice infestations affecting the children, as manifested in the eldest child having thirty-eight reports of lice during the 2014-2015 school year.4 The failure to address the issue at home required this child to receive treatments at school, which apparently resulted in other children bullying her. This child also suffered from an untreated gastrointestinal issue resulting in pain and the inability to control her bowels. Despite referrals, Mother did not follow through on recommended medical appointments to address the eldest sibling's significant gastrointestinal issue and also missed newborn appointments for the youngest sibling. Mother additionally faced truancy charges as the eldest child missed forty-seven days of school during the 2014-2015 school year. Given this background, Juvenile Court Judge Pavlock adjudicated the four Children dependent in November 2015.
As is relevant to the issues before this Court, Attorney Mark Hollenbeck began serving as the Children's GAL as early as January 2016.5 See Master's Recommendation - Permanency Review (Non-Placement) dated Jan. 21, 2016. The Master's Recommendation, as adopted by Judge Pavlock, explained that "the views of the child[ren] regarding the permanency plan have been ascertained to the fullest extent possible and communicated to the court by the [GAL]." Id. This notation was repeated in subsequent review orders over the next two years.
While Mother was initially compliant with the family's permanency plan in the spring of 2016, her progress slowed in May 2016, when the family's house was condemned. Additionally at this time, Mother had a new paramour, Richard Youngs, III, who was a registered sex offender.6 During the summer of 2016, due to Mother's unstable housing and her continuing relationship with Mr. Youngs, the court twice placed the Children in short-term foster care.7 They were returned to Mother's custody in the fall of 2016, after she made some progress. However, during the winter of 2016-2017, the children again experienced lice infestations, and Mother failed to attend to the Children's significant dental issues.8 Memorandum and Order, dated Mar. 2, 2018, at 3, 6. The court noted that "[t]his lack of dental care and hygiene resulted in the children having extensive dental problems, pain[,] and tooth removal." Id. at 3.
The Juvenile Court removed the Children from Mother's custody again in February 2017, following an emergency room visit for S.A.G., then five years old, who had alleged that one of Mr. Youngs’ children had sexually assaulted her. Despite the alleged assault, Mother allowed Mr. Youngs to continue to live with her and the Children. The Juvenile Court granted CYS's request to place the Children with their father's aunt and uncle ("Paternal Aunt and Uncle"), who "took immediate efforts to adjust the children's diet and the children's behaviors and overall health immediately improved." Id. at 4. The court additionally stated that Paternal Aunt and Uncle "worked closely with CYS, service providers[,] and medical and dental providers to assure the children's safety and wellbeing." Id.
Following the removal, Mother made minimal progress on her reunification goals. Additionally, Mother continued to reside with Mr. Youngs and his children, even though his presence jeopardized her subsidized housing. Notably, Mother "repeatedly tried to hide and deceive other[s] regarding Mr. Youngs’ residency in her home." Id. Moreover, she did "not have frequent contact with the children," often cancelling appointments which caused the children distress. Id. at 4, 7.
In December 2017, CYS filed petitions to terminate Mother's parental rights to the four Children. On January 8, 2018, Judge Pavlock, now sitting as an orphans’ court judge, appointed Attorney Hollenbeck to "represent both the best interests and the legal interests" of the four Children after specifically finding that Attorney Hollenbeck could "adequately represent both the [Children's] best interests and legal interests without conflict." Order of January 8, 2018.
While the order did not provide additional details regarding the court's finding of no conflict, we observe that Judge Pavlock had been involved with the Children's case for over two years, during which time Attorney Hollenbeck had served as the Children's GAL. Indeed, as noted above, the permanency review orders repeatedly indicated that Attorney Hollenbeck had ascertained and communicated the children's preferences to the Juvenile Court, upon which information Judge Pavlock presumably relied when determining that Attorney Hollenbeck could be appointed as legal counsel without conflict. See , e.g., Master's Recommendation - Permanency Review (Non-Placement) adopted by Judge Pavlock on June 21, 2017 ("The views of the child[ren] regarding the permanency plan have been ascertained to the fullest extent possible and communicated to the court by the [GAL].") The court additionally indicated that any party could object to the appointment of Attorney Hollenbeck within ten days of the order; however, no party objected.9
The court held a termination of parental rights hearing in February 2018. The court succinctly summarized the testimony provided by the CYS caseworkers, which the court accepted as accurate:
They all indicated that Mother at times will attend appointments and does have contact with [the Children]. However, the contact and its consistency is intermittent. Mother could have more contact but does not. They all testified that [the Children] have a bond with Mother. Each expressed concern regarding Mother's ability and difficulty understanding and following through with their recommendations and requests. They all testified that Mother puts her relationship with Mr. Youngs and her care of his children ahead of the requirements of the reunification plan and her responsibilities for her children.
Tr. Ct. Op. at 5. The caseworkers also testified to the Children's dramatic improvement in terms of their health and behavior in the home of Paternal Aunt and Uncle, who were, and presumably remain, willing to adopt the Children. As is relevant to the issues raised in this case, the GAL/Counsel did not place each child's preferred outcome on the record at this hearing but did assert that he viewed termination to be in the Children's best interests.
Based upon the evidence supporting Mother's inability to care for the Children's medical and dental...
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