IN RE: ADOPTION OF: L.B.M., A MINOR APPEAL OF: J.P., MOTHER IN RE: ADOPTION OF: A.D.M., A MINOR APPEAL OF: J.P., MOTHER
ARGUED: December 6, 2016
from the Order of the Superior 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.
from the Order of the Superior 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.
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.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
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.
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.
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,  which the trial court must
determine. 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).
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. §
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
(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). No other statutory provision speaks
to the appointment of counsel or a GAL in an involuntary
termination of parental rights proceeding.
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
August 13, 2013, Mother pleaded guilty to possession of drug
paraphernalia and was sentenced to twelve months of
probation. 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
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. 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.
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 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.
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.
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.
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. 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).
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.
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.
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 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.
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.
upon K.M.'s reasoning, the trial court here
decided that it did was not required to appoint counsel other
than the GAL. 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 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.
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.
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 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.
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. 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
Appointment of Counsel
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 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
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. There is no ambiguity in the
statute. We may not manufacture one.
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. 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.
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
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.
Service of GAL as Counsel
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. Moreover,
because the Adoption Act does not 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.
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,
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.
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.
Treatment of Error
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. Brief for GAL at
43-44. CYS concurs. Brief for CYS at 36. Mother does not
address the issue directly. ...