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
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
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.
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). We also affirm the orphans' court
order involuntarily terminating Mother's parental rights.
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
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?
parties have filed supplemental Briefs addressing these
COURT'S AUTHORITY TO RAISE SUA SPONTE AN
UNDISCLOSED CONFLICT OF A GAL
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.
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." 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).
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
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.
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.").
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.").
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)).
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.
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.").
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).
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.
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.
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
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.
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.
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.
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.
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.
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
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
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
ISSUES ON APPEAL REGARDING INVOLUNTARY TERMINATION OF HER
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
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. ...