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In re Adoption of K.M.G.

Superior Court of Pennsylvania

September 13, 2019

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

          Appeal from the Decree March 5, 2018 In the Court of Common Pleas of McKean County Orphans' Court at No(s): 42-17-0239, 42-17-0240, 42-17-0241, 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.

          OPINION

          DUBOW, J.

         In these consolidated appeals, Appellant, T.L.G. ("Mother"), appeals from the Decrees that involuntarily terminated her parental rights to her four minor children ("the Children"). This Court certified this case for en banc review to determine whether, in reviewing involuntary termination of parental rights decisions, this Court has the obligation to review sua sponte whether the Guardian ad Litem ("GAL") had a conflict.

         We find that we do not have the authority to address the conflict issue sua sponte. In so holding, we overrule In re Adoption of T.M.L.M., 184 A.3d 585 (Pa. Super. 2018).[1] We also affirm the orphans' court order involuntarily terminating Mother's parental rights.

         On January 4, 2019, this Court certified this case for en banc review. On January 4, 2019, this court certified this case for en banc review of the following issues, slightly reframed for clarity:

1. Is it mandatory that the Superior Court, in an appeal from an involuntary termination decision, review sua sponte whether the child's legal counsel and/or guardian ad litem ["GAL"] properly represented the child's legal interest, particularly in regard to whether there was a conflict between GAL's representation and the child's stated preference?
2. When a party properly raises the issue of whether a GAL has a conflict before the orphans' court, what is the standard of review that Superior Court must use to review the decision of the trial court?
3. When a party raises the issue that the GAL has an undisclosed conflict for the first time on appeal before Superior Court, must Superior Court remand the case to the orphans' court to determine whether a conflict exists or may Superior Court make its own determination from the certified record?
4. What factors must the orphans' court consider and findings the orphans' court must make in determining whether the child's preference differs from the child's best interests and thus, the GAL has a conflict?

         The parties have filed supplemental Briefs addressing these issues.

         SUPERIOR COURT'S AUTHORITY TO RAISE SUA SPONTE AN UNDISCLOSED CONFLICT OF A GAL

         In a dependency case, the trial court appoints a GAL who is "to represent the legal interests and the best interests of the child." 42 Pa.C.S. § 6311(a); Pa.R.J.C.P. 1151(A). There will be times when the child's best interest differs from the child's stated preferences. In such instances, the GAL has the professional obligation to notify the court of a conflict. See Rule of Professional Conduct 1.7. When the GAL notifies the court of a conflict, the court will appoint a separate attorney to represent the child's stated interest. See Pa.R.J.C.P. 1154 cmt.

         Since the parties in a dependency proceeding are usually identical to those in a hearing on a petition to involuntarily terminate parental rights, the orphans' court often appoints the dependency GAL to represent the child during the termination proceedings. This is pursuant to Section 2313 of the Adoption Act that requires the court to appoint "counsel" to represent the child at the involuntary termination hearing. 23 Pa.C.S. 2313(a). There has been much litigation recently about the term "counsel" and those instances in which a GAL has a conflict and may not serve as "counsel."[2] See, e.g., In re: Adoption of L.B.M., 161 A.3d 172 (Pa. 2017); In re: T.S., 192 A.3d 1080 (Pa. 2018).

         We are not defining today those situations in which a GAL has a conflict, but rather the procedural issue of whether Superior Court must sua sponte review every termination case to make an independent determination of whether a GAL has a conflict.

         A three-judge panel of this Court, in T.M.L.M., held that Superior Court must sua sponte make an independent determination of whether a GAL has a conflict in every involuntary termination case. T.M.L.M., 184 A.3d at 590. In that case, the orphans' court stated on the record that the appointment of the GAL for the involuntary termination hearing complied with L.B.M. and, thus, Section 2313(a). Id. at 588. No party on appeal contested this finding of the orphans' court. Yet, the panel in T.M.L.M. sua sponte reviewed the record, found that the GAL may have a conflict, reversed the order terminating the mother's parental rights, and remanded the case for further proceedings. Id. at 590. We now overrule T.M.L.M because the Superior Court only has the authority to raise sua sponte the issue of whether the lower court appointed any counsel for the child, and not the authority to delve into the quality of the representation.

         It is well established that an appellate court may not raise an issue sua sponte, except when the issue addresses the subject-matter jurisdiction of the court. In re Angeles Roca First Judicial Dist. Philadelphia Cty., 173 A.3d 1176, 1197 (Pa. 2017) ("It is foundational that jurisdictional questions may be raised sua sponte."); Commonwealth v. Parker, 173 A.3d 294, 296 (Pa. Super. 2017) ("A court may consider the issue of jurisdiction sua sponte.").

         There are, however, a few discrete, limited non-jurisdictional issues that the Supreme Court has authorized the lower courts to raise sua sponte, such as waiver as a result of various briefing defects. See, e.g., Commonwealth v. Passaro, 476 A.2d 346, 348 (Pa. 1984) (describing Pennsylvania's practice of dismissing pending appeals of escaped prisoners, which the court may do sua sponte); Berg v. Nationwide Mut. Ins. Co., Inc., 6 A.3d 1002, 1015 (Pa. 2010) ("failure to include issues in a Rule 1925(b) statement resulted in 'automatic' waiver, which could be found sua sponte by courts.").

         Likewise, the Superior Court has found that it has the authority to consider sua sponte the failure of the trial court to conduct a Grazier hearing to ensure that a defendant has knowingly and voluntarily waived his right to counsel for his first PCRA petition. Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011). This Court based this conclusion on the fact that the PCRA statute entitles an indigent defendant to counsel for his first PCRA petition, and our Supreme Court has acknowledged that "PCRA relief cannot stand unless the petitioner was afforded the assistance of counsel." Id. (quoting from Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa. 1998)).

         Similarly, when the orphans' court fails to appoint any counsel for a child in an involuntary termination hearing, Superior Court may raise this issue sua sponte. In re: K.J.H., 180 A.3d 411, 413 (Pa. Super. 2018). In K.J.H., this Court reasoned that since the child had no counsel at the termination hearing and Section 2313(a) requires the appointment of counsel, Superior Court should raise the issue sua sponte in order to protect this statutorily-mandated right of the child. Id.

         In contrast, however, our Supreme Court has specifically prohibited the Superior and Commonwealth Courts from deciding certain issues sua sponte. For instance, the Superior Court cannot address constitutional issues sua sponte. See Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975) (criticizing the Superior Court's sua sponte consideration of a constitutional issue, which "exceeded its proper appellate function of deciding controversies presented to it.").

         Also, the intermediate appellate courts may not consider sua sponte standing, recusal issues, or the need to file a dependency petition. See In re Nomination Petition of deYoung, 903 A.2d 1164, 1168 (Pa. 2006) (noting that our Supreme Court "has consistently held that a court is prohibited from raising the issue of standing sua sponte. Whether a party has standing to maintain an action is not a jurisdictional question."); Commonwealth v. Whitmore, 912 A.2d 827, 833 (Pa. 2006) (concluding that the Superior Court erred when it sua sponte removed the trial judge where recusal had never been raised by the parties). See also Fallaro v. Yeager, 528 A.2d 222, 228 (Pa. Super. 1987) (finding that a court may not make a sua sponte determination of dependency in a custody action where no dependency petition has been filed or in an action under the Child Protective Services Law).

         The Supreme Court disfavors the intermediate appellate court's consideration of issues sua sponte because it is more important to respect orderly judicial decision-making, afford counsel the opportunity to brief and argue issues, permit the court to benefit from counsel's advocacy, and uphold issue preservation rules. Wiegand, supra.

         Although our Supreme Court has authorized the appellate courts to raise sua sponte the issues above, it has not authorized the Superior Court to raise sua sponte the issue of whether a GAL representing a child in an involuntary termination hearing has a conflict in such representation. In fact, the most recent Pennsylvania Supreme Court cases addressing the child's statutory right to legal counsel, as opposed to a GAL, in an involuntary termination hearing pursuant to 23 Pa.C.S. § 2313(a) do not involve situations in which thre Superior Court raised the issue sua sponte.

         In L.B.M., the parents raised the issue of a conflict with the orphans' court and appealed the issue to Superior Court. L.B.M., 161 A.3d at 176-77. Similarly, in T.S., the parents raised the issue of a conflict in Superior Court. T.S., 192 A.3d at 1085. In both cases, because the parents raised the conflict issue before either the orphans' court or Superior Court, there was no reason for the Supreme Court to address whether Superior Court can raise the conflict issue sua sponte. Thus, at this point, the Supreme Court has not authorized Superior Court to raise the conflict issue sua sponte.

         In this case, the orphans' court provided the parties with an opportunity to raise the issue of whether the GAL had a conflict, and no party responded. In particular, the orphans' court entered an order appointing the GAL who had represented the Children in the dependency proceeding to represent the Children in the termination hearing, finding that, pursuant to In re: D.L.B., 166 A.3d 322 (Pa. Super. 2017), the GAL, "may adequately represent both [Children's] best interests and legal interests without conflict." Order, 1/8/18. The orphans' court then gave each party 10 days to object to the "dual representation[.]" Id. No party objected.

         Applying the current precedent to these facts, Superior Court has no authority to raise sua sponte the issue of whether a GAL has a conflict. Rather, as stated previously, this Court only has the authority to raise sua sponte the trial court's failure to appoint any counsel for the Child. See K.J.H., 180 A.3d at 413. In this case, the orphans' court did appoint counsel, the GAL, and we have no authority to delve into the quality of the GAL's representation. The Supreme Court has not authorized us to do so.

         Moreover, we do not see the need to do so because numerous protections exist to ensure that the GAL does not have a conflict at an involuntary termination hearing. First, a GAL has a professional responsibility to notify the court if there is a conflict so that the court may appoint separate counsel. See Rule of Professional Responsibility 1.7. Second, any party has standing to raise the issue of a potential conflict before the orphans' court or Superior Court. See, e.g., L.B.M., 161 A.3d at 176-77; T.S., 192 A.3d at 1085. Finally, orphans' court, as in T.M.L.M. and this case, often decides this issue. Thus, there are many mechanisms to protect a child's right to counsel who does not have a conflict at a termination hearing.

         Accordingly, we overrule T.M.L.M., and hold that this Court does not have the authority review sua sponte whether a conflict existed between counsel's representation and the child's stated preference in an involuntary termination of parental rights proceeding. Rather, pursuant to K.J.H., this Court's authority is limited to raising sua sponte the issue of whether the orphans' court violated Section 2313(a) by failing to appoint any counsel for the Child in a termination hearing. K.J.H., 180 A.3d at 413.

         We next address the second issue certified for en banc review and consider the standard of review that the Superior Court must apply when reviewing an orphans' court decision that the GAL does not have a conflict and, thus, the orphans' court does not need to appoint a separate attorney to represent the child's stated preference at a termination hearing. Since the determination that a GAL does not have a conflict is a factual one, we hold that we should use the same standard of review when reviewing any factual determination of the orphans' court and give great deference to those factual findings.

         It is well settled that when we review an order granting or denying termination of parental rights, "we accept factual findings and credibility determinations supported by the record, and we assess whether the common pleas court abused its discretion or committed an error of law." T.S., 192 A.3d at 1087. We may not reverse merely because the record could support a different result. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). We give great deference to the orphans' courts "that often have first-hand observations of the parties spanning multiple hearings." Id. Moreover, the orphans' court "is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence." In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation omitted). Thus, we must give great deference to orphans' court credibility determinations and weight that the orphans' court places on the evidence regarding a potential conflict.

         The third issue certified is the standard of review the Superior Court must use when a party fails to raise the conflict issue before the orphans' court and raises it for the first time on appeal. In such cases, the Superior Court should review the record to determine if the record is clear and undisputed about whether the child is able to express "a subjective, articulable preference" and if so, whether the child's preferred outcome differed from the child's best interest. See T.S., 192 A.3d at 1089.

         Our final question that we certified for en banc review addresses the best practices for the orphans' court in determining whether the GAL has a conflict; i.e., for a child who can express "a subjective, articulable preference," whether the child's best interests differs from the child's preferred outcome. Id. In other words, the issue is whether the child's preferred outcome is that the orphans' court deny the involuntary termination petition while the GAL advocates that it is in the child's best interest for the orphans' court to grant the petition. The orphans' court should first determine whether the GAL has spoken with the child about the child's preferences regarding the termination petition and whether such inquiry results in the GAL having a conflict. If the GAL represents to the court that he or she has made the inquiry and there is not a conflict, the orphans' court should permit any other party to present evidence to support that party's position that the GAL has a conflict. If the orphans' court at that point decides that it is necessary to question the child, the orphans' court should do so in the manner that is least difficult for the child. If it is possible, however, to obtain the information from a mental health provider who is working with the child, we would suggest that the orphans' court hear that testimony in lieu of questioning the child.

         MOTHER'S ISSUES ON APPEAL REGARDING INVOLUNTARY TERMINATION OF HER PARENTAL RIGHTS

         Having determined that Superior Court is not authorized to raise sua sponte the issue of whether the GAL had a conflict that it did not disclose, we will address the merits of Mother's appeal that the orphans' court erroneously granted the petition to terminate her parental rights involuntarily.

         McKean County Children and Youth Services ("CYS") became involved with the Children because of Mother's inability to address the Children's significant medical needs, extensive dental problems, ongoing head lice and serious bowel disease. ...


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