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holding that "if the preferred outcome of a child is incapable of ascertainment because the child is very young and pre-verbal," then Section 2313 "is satisfied where the court has appointed an attorney-guardian ad litem who represents the child's best interests during such proceedings."
Summary of this case from In re C.L.R.Opinion
Nos. 50 & 51 WAP 2017
08-22-2018
IN RE: T.S., E.S., Minors Appeal of: T.H.-H., Natural Mother
Simone Nicole DeJarnett, Esq., K & L Gates LLP, David R. Fine, Esq., for Support Center for Child Advocates, Amicus Curiae, Defender Assn of Philadelphia, Child Advocacy Unit, Amicus Curiae, Dauphin County Social Services for Children & Youth, Amicus Curiae, Johnston-Walsh, Lucy, Amicus Curiae. Marsha Levick, Esq., Jennifer Kres Pokempner, Esq., Lisa Bolotin Swaminathan, Esq., for Juvenile Law Center, Amicus Curiae, American Civil Liberties Union of Pennsylvania, Amicus Curiae, Community Legal Services, Inc., Amicus Curiae, National Coalition for a Civil Right to Counsel, Amicus Curiae, Pennsylvania Legal Aid Network, Amicus Curiae, Community Justice Project, Amicus Curiae, Finck, Kara Ryan, Amicus Curiae, National Association of Counsel for Children, Amicus Curiae. Kiersten M. Frankowski, Esq., Allegheny County Bar Foundation, Catherine L. Volponi, Esq., Juvenile Court Project, for T.H.-H., Appellant. Melaniesha Abernathy, Esq., CYF Adoption Legal Unit, Paula Jean Benucci, Esq., Allegheny County Law Department, for OCYF-Legal Unit-Adoption, Appellee. Jonathan Budd, Esq., Kidsvoice, Cynthia B. Moore, Esq., for T.S., Appellee, E.S., Appellee.
Simone Nicole DeJarnett, Esq., K & L Gates LLP, David R. Fine, Esq., for Support Center for Child Advocates, Amicus Curiae, Defender Assn of Philadelphia, Child Advocacy Unit, Amicus Curiae, Dauphin County Social Services for Children & Youth, Amicus Curiae, Johnston-Walsh, Lucy, Amicus Curiae.
Marsha Levick, Esq., Jennifer Kres Pokempner, Esq., Lisa Bolotin Swaminathan, Esq., for Juvenile Law Center, Amicus Curiae, American Civil Liberties Union of Pennsylvania, Amicus Curiae, Community Legal Services, Inc., Amicus Curiae, National Coalition for a Civil Right to Counsel, Amicus Curiae, Pennsylvania Legal Aid Network, Amicus Curiae, Community Justice Project, Amicus Curiae, Finck, Kara Ryan, Amicus Curiae, National Association of Counsel for Children, Amicus Curiae.
Kiersten M. Frankowski, Esq., Allegheny County Bar Foundation, Catherine L. Volponi, Esq., Juvenile Court Project, for T.H.-H., Appellant.
Melaniesha Abernathy, Esq., CYF Adoption Legal Unit, Paula Jean Benucci, Esq., Allegheny County Law Department, for OCYF-Legal Unit-Adoption, Appellee.
Jonathan Budd, Esq., Kidsvoice, Cynthia B. Moore, Esq., for T.S., Appellee, E.S., Appellee.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
CHIEF JUSTICE SAYLOR
This appeal involves a proceeding in which parental rights were involuntarily terminated. Throughout the termination proceedings, up to and including the hearing on the termination petition, an attorneyguardian ad litem represented the best interests of the children involved. The primary issue is whether the common pleas court erred in failing to appoint a separate attorney to represent their legal interests.
I. Background
A. In re Adoption of L.B.M.
The present appeal follows closely upon our decision in In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172 (2017). In that matter, this Court interpreted and applied Section 2313(a) of the Adoption Act. See 23 Pa.C.S. § 2313(a) (relating to representation in proceedings under the Adoption Act). Although multiple opinions were filed in L.B.M. , a majority of the Court agreed on several points: (a) in the context of contested termination-of-parental-rights ("TPR") proceedings, the first sentence of Section 2313(a) requires that the common pleas court appoint an attorney to represent the child's legal interests, i.e. , the child's preferred outcome; (b) where there is a conflict between the child's legal interests and his best interests, an attorney-guardian ad litem (an "attorney-GAL"), who advocates for the child's best interests, cannot simultaneously represent the child's legal interests; and (c) in such a circumstance, the failure to appoint a separate attorney to represent the child's legal interests constitutes structural error, meaning it is not subject to a harmless-error analysis.
That provision states:
(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).
The difference between legal interests and best interests is summarized in a comment to a rule governing the GAL's duties in dependency matters:
"Legal interests" denotes that an attorney is to express the child's wishes to the court regardless of whether the attorney agrees with the child's recommendation. "Best interests" denotes that a guardian ad litem is to express what the guardian ad litem believes is best for the child's care, protection, safety, and wholesome physical and mental development regardless of whether the child agrees.
Pa.R.J.C.P. 1154, cmt., quoted in L.B.M. , 639 Pa. at 431 n.2, 161 A.3d at 174 n.2.
While the lead opinion indicated that there must always be a separate attorney representing the child's legal interests, see L.B.M. , 639 Pa. at 442-43, 161 A.3d at 180-81 (plurality in relevant part), that portion of the opinion represented the views of three Justices – Justices Wecht, Donohue, and Dougherty. The four Justices in a responsive posture were of the view that an attorney-GAL can fill the role required by Section 2313(a), while also advancing the child's best interests, so long as there is no conflict between the child's legal interests and best interests. In terms of disposition, L.B.M. vacated the TPR decree and remanded to the trial court for further proceedings. Of the five members who supported that result, the three lead Justices did so because no separate counsel had been appointed for the children involved, thereby violating the rule they favored broadly prohibiting one attorney serving both roles in any contested TPR proceeding. See id. at 446, 161 A.3d at 183 (plurality in relevant part). The two Justices concurring in the result supported the outcome on narrower grounds, namely, that the trial court had failed to conduct a conflict analysis to determine whether the attorney-GAL could fulfill both roles in that specific case. See id. at 448, 161 A.3d at 184 (Saylor, C.J., concurring). Notably, at the time of the TPR hearing in L.B.M. , the children were four and eight years old, and the hearing transcript reflected that the eight-year-old in particular was able to articulate his feelings and beliefs about the case and respond rationally to the judge's questions concerning his preference as to the outcome of the TPR proceedings. See id. at 436, 161 A.3d at 177.
See id. at 447-48, 161 A.3d at 184 (Saylor, C.J., concurring, joined by Todd, J.) ("[T]he propriety of permitting the same individual to serve in both capacities should be determined on a case-by-case basis, subject to the familiar and well-settled conflict of interest analysis."); id. at 455, 161 A.3d at 188-89 (Baer, J., dissenting, joined by Mundy, J.) ("Section 2313(a), in my view, does not mandate the appointment of counsel distinct from the GAL Attorney serving in the same dual capacity in the dependency proceedings, absent a conflict of interest between the child's best interests and legal interests."); id. at 459, 161 A.3d at 191 (Mundy, J., dissenting, joined by Baer, J.) (concluding that, per the applicable court rules, an attorney GAL can represent the best interests and legal interests unless there is a conflict of interest).
B. Factual and procedural history of this case
Turning to the present controversy, T.S. and E.S. were born to Appellant T.H.-H. ("Mother") in June 2013 and August 2014, respectively. The Allegheny County Office of Children, Youth and Families ("CYF") became familiar with Mother shortly after E.S.'s birth.
Mother admitted to using marijuana while pregnant with E.S., and she tested positive for THC (a cannabinoid) shortly after giving birth. CYF did not initially file a dependency petition, opting instead to provide services to help Mother implement her goals. However, Mother was not substantially compliant with treatment and failed to discontinue her drug use. Also, she admitted to smoking marijuana in the presence of the children, exhibited minimal parenting skills – often leaving Children in a bedroom unattended with the television "blaring," and failing to undertake basic parenting tasks such as feeding the children or changing their diapers – and did not follow through with E.S.'s medical appointments. See N.T., Feb. 3, 2017, at 8, 13-14.
Both children had special needs. T.S. had speech delays and severe tantrums, and E.S. had feeding problems. See id. at 21.
Beginning in January 2015, home visits were conducted by a caseworker from an independent social services agency, who helped Mother with various aspects of parenting and budgeting. On one visit, the caseworker developed concerns for the safety of the children when she observed an open oven being used to heat the residence, the presence of a cigarette lighter and a large knife where T.S. could access them, and a used condom on the floor which she believed could constitute a choking hazard. See N.T., Feb. 3, 2017, at 52-53. Although she discussed these matters with Mother, Mother downplayed their significance and generally did not appear to appreciate that they could compromise the children's safety.
In July 2015, a CYF caseworker made an unannounced visit and noticed that the home smelled of marijuana and Mother was under the influence of drugs or alcohol. Because CYF believed it could no longer ensure the safety of the children in Mother's care, it sought an emergency custody authorization and the children were removed that day. They were adjudicated dependent and placed with foster parents. For the placement and permanency review period that followed, the court appointed KidsVoice (a child-advocacy organization in Pittsburgh) to represent the children's best interests and legal interests in compliance with Section 6311 of the Juvenile Code. See 42 Pa.C.S. § 6311 ; Pa.R.J.C.P. 1154.
After the foster care placement, Mother's court-ordered goals were, inter alia , to participate in drug and alcohol treatment (which included random urine screens), mental health treatment, and parenting classes, and to visit her children and maintain contact and cooperation with CYF. The court appointed Beth Bliss, Psy.D., a licensed forensic psychologist, to conduct evaluations. Dr. Bliss evaluated Mother individually and performed interactional evaluations between the children and Mother, and between the children and their foster parents.
Separately, Mother was referred to ACHIEVA due to an intellectual disability. According to the record, the ACHIEVA program in which Mother took part supports parents with an IQ score of 70 or below. See N.T., Feb. 13, 2017, at 33.
In late 2016, CYF filed a petition to terminate Mother's parental rights, which Mother contested. The court held a hearing on the petition on February 3, 2017. At the hearing, CYF was represented by Melaniesha Abernathy, Esq.; Mother was represented by Kiersten Frankowski, Esq., of the Allegheny County Bar Foundation's Juvenile Court Project; and, as reflected on the hearing transcript and the TPR docket sheet, the children were represented by Cynthia J. Moore, Esq., from KidsVoice. The orders appointing KidsVoice to represent the children in the dependency proceedings stated it was to represent their legal and best interests, and it is undisputed that this dual function carried over into the termination proceedings. Thus, the children had continuity of representation between the dependency and TPR proceedings. However, no independent counsel represented solely the children's legal interests in the latter proceedings.
The petition also sought termination of the biological father's parental rights. His rights were terminated and he has not appealed. Only the mother's appeal is before us.
The CYF caseworker, the ACHIEVA employee, and Dr. Bliss were among the witnesses called by CYF. According to their testimony, Mother was inconsistent or non-compliant with most of the treatment programs to which CYF referred her – including dual-diagnosis (i.e. , mental health and substance abuse) treatment – and had difficulty providing clean urine screens, see N.T., Feb. 3, 2017, at 10-11; she was unable to understand or manage the needs of both children simultaneously during supervised visits, including their safety needs, see id. at 13, 31, 36, 39, 64; see generally id. at 37 (reflecting the ACHIEVA worker's assessment that Mother "would need 24/7 supports if she were alone with the children"); and she only minimally complied with the court's permanency plan, see id. at 31. More generally, the conditions leading to the children's removal had not been remedied, nor were they likely to be within a reasonable timeframe. See, e.g. , id. at 24. In foster care, moreover, T.S.'s speech and overall behaviors "improved greatly," and E.S.'s feeding problems resolved. Id. at 21. The CYF caseworker expressed that it would be best for the children to remain with the foster parents and ultimately to be adopted by them. See id. at 24.
Dr. Bliss testified that Mother did not prioritize being a parent, as she missed numerous visits with the children because she had "other things she had to do," id. at 72, and she continued to use drugs although she was aware such conduct would negatively impact the likelihood of reunification. Dr. Bliss also expressed that, whereas the children were indifferent to Mother's presence in the visiting room and did not seem bonded with her, they appeared emotionally bonded with their foster parents. In this respect, Dr. Bliss stated that T.S. repeatedly sought attention from his foster mother, referred to the latter as "Mommy," and showed her physical affection. Further, according to Dr. Bliss, the foster parents were effective in attending to the children's needs, providing them with affection, and promoting developmentally appropriate skills. Dr. Bliss opined to a reasonable degree of psychological certainty that the children would not suffer any harm from not seeing Mother again, and she recommended that the current foster placement continue. See id. at 78-79.
The bond with the foster parents was corroborated by the CYF caseworker. See id. at 22. Still, the ACHIEVA employee did report observing affection between Mother and her children during at least some of the visits she supervised. See id. at 40.
Later that day, the court granted the petition, finding that CYF had established by clear and convincing evidence grounds for termination under paragraphs (2), (5), and (8) of Section 2511(a) of the Adoption Act, see 23 Pa.C.S. § 2511(a)(2), (5), (8), and that termination would serve the children's needs and welfare. See id. § 2511(b) (providing that, in terminating parental rights, the court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child").
That provision states, in relevant part:
(a) General rule. —The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
* * *
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent
* * *
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
* * *
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.
23 Pa.C.S. § 2511(a)(2), (5), (8).
While Mother's appeal to the Superior Court was pending, this Court decided L.B.M. on March 28, 2017. Accordingly, in her appellate brief Mother claimed for the first time that the children should have been represented by appointed counsel separate from the GAL at the termination proceeding. Mother argued that the trial court's failure to appoint such counsel constituted structural error, thereby entitling her to a new TPR proceeding. Mother also maintained that her failure to raise the issue previously should be excused because this Court had not yet ruled in L.B.M. at the time of the February 3, 2017, hearing.
On May 23, 2017, we filed revised opinions in L.B.M. clarifying which parts of the lead opinion reflected the views of a majority of the Court. See L.B.M. , 639 Pa. at 432 n.1, 161 A.3d at 174 n.1. The timing of those clarifications in relation to the parties' Superior Court filings is not material to this appeal.
In her Rule 1925(b) statement, Mother had only challenged the trial court's ruling that that the children's needs and welfare would be best served, for purposes of Section 2511(b), by terminating her rights. See 23 Pa.C.S. § 2511(b).
In a supplemental brief, the GAL argued that, under the Superior Court's interpretation of L.B.M . in In re D.L.B. , 166 A.3d 322 (Pa. Super. 2017), a guardian ad litem may serve as legal counsel for a child in an involuntary TPR proceeding as long as the child's legal interests and best interests are not in conflict. The GAL asserted that no such conflict had been identified here. In response, Mother did not contend that the children's best interests and legal interests were in conflict. Rather, she argued that the D.L.B . panel had misapprehended L.B.M. , which, she argued, requires the appointment of independent legal counsel for children in every involuntary TPR proceeding.
D.L.B. was decided in mid-June 2017, after the Superior Court briefing schedule had closed. The intermediate court granted the parties' request to file supplemental briefs addressing the impact of D.L.B on the present case.
A three-judge panel of the Superior Court affirmed in an unpublished decision. The panel observed that, regardless of Mother's suggestion that D.L.B. was wrongly decided, D.L.B. represented binding precedent which the panel was not at liberty to overrule. See In re T.S. , Nos. 364 & 365 WDA 2017, slip op. at 5, 2017 WL 3669504, at *2 (Pa. Super. Aug. 25, 2017). The court noted that, per D.L.B. 's analysis, L.B.M. does not require appointment of independent legal counsel for a child in a contested TPR proceeding unless the child's legal and best interests conflict. See id. (citing D.L.B. , 166 A.3d at 329 ). The court ultimately concluded that a remand was unnecessary as Mother did not argue that the children's legal and best interests were in conflict and, in the court's view, the record did not indicate that any such conflict existed. See id.
The panel separately held that the county court did not err in concluding that termination of her parental rights would best serve the children's needs and welfare pursuant to Section 2511 of the Adoption Act. See id. at 8-9, 2017 WL 3669504, at *4. Mother has not challenged that aspect of the Superior Court's decision.
We granted further review to determine whether the common pleas court erred in failing to appoint separate counsel to represent the children's legal interests pursuant to Section 2313(a), 23 Pa.C.S. See In re T.S. , ––– Pa. ––––, 173 A.3d 266 (2017) (per curiam ).
II. Waiver
CYF and the GAL both maintain that Mother waived the issue of whether the common pleas court should have appointed a separate attorney to represent the children's legal interests by waiting until her appeal to raise it. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). They argue the timing of this Court's L.B.M. decision is immaterial since the separate-counsel requirement is alleged to be based on Section 2313(a), which was extant long before L.B.M. was decided. Mother counters that failure to appoint counsel to represent a child's legal interests at a contested TPR hearing is not subject to waiver because it constitutes structural error. See Brief for Appellant at 21.
The GAL filed her brief on behalf of the children inasmuch as she has served as their counsel throughout these proceedings. In light of the substantive issue in this appeal, however, and for the sake of clarity, where the GAL's advocacy is concerned we depart from our usual custom of attributing arguments to the party. Cf. Commonwealth v. Wright , 621 Pa. 446, 456 & n.9, 78 A.3d 1070, 1076 & n.9 (2013) (citing cases and departing from such custom where counsel's and the party's positions were at odds).
Mother's focus solely on structural error does not resolve the waiver question without further analysis (which she does not provide). First, and as noted, structural error means that no harmless-error analysis is relevant; however, it does not always imply non-waivability. Accord Weaver v. Massachusetts , ––– U.S. ––––, 137 S.Ct. 1899, 1910, 198 L.Ed.2d 420 (2017) ; see, e.g. , Commonwealth v. Rega , 620 Pa. 640, 657, 70 A.3d 777, 786-87 (2013) (observing that a violation of the right to a public trial "is a particular type of structural error which is waivable" (citations omitted) ); cf. Freytag v. Comm'r of Internal Revenue , 501 U.S. 868, 896, 111 S.Ct. 2631, 2648, 115 L.Ed.2d 764 (1991) (Scalia, J., dissenting) (positing that non-waivability is more closely aligned with jurisdictional defects than with whether an error is structural). See generally Commonwealth v. Martin , 607 Pa. 165, 218, 5 A.3d 177, 208–09 (2010) (Saylor, J., concurring) (surveying jurisdictions and discussing policy concerns).
Nevertheless, we conclude this particular type of alleged error is non-waivable. The statutory right under Section 2313(a) belongs to the child, not the parent. Accord In re E.F.H. , 751 A.2d 1186, 1189 (Pa. Super. 2000). There was no attorney representing solely the children's legal interests who could have raised their rights in the trial court, and the children plainly could not have done so themselves. See In re K.J.H. , 180 A.3d 411, 413 (Pa. Super. 2018) ("Child, due to his minority and lack of representation in the orphans' court, could not raise this issue himself."); cf. Pa.R.J.C.P. 1152(A)(2) (stating minors can waive counsel in dependency cases only if the waiver is knowing, intelligent, and voluntary, and the court conducts a record colloquy). We conclude, then, that the failure of any party, including Mother, to affirmatively request separate counsel for the children cannot have constituted waiver. Accordingly, the substantive question on which we granted review is properly before the Court. We now turn to that issue.
III. Dual-role representation
When reviewing 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. See In re D.C.D. , 629 Pa. 325, 339-40, 105 A.3d 662, 670-71 (2014). We resolve all questions of law de novo. See id.
Mother has abandoned her original challenge to the county court's exercise of its discretion, see supra note 12, and instead asserts that the Superior Court erred in not recognizing that L.B.M. required it to remand this matter to the trial court for a new termination proceeding at which the children's legal interests would be represented by appointed counsel. She structures her advocacy in terms of rebutting what she perceives as three erroneous assumptions made by the D.L.B. court. See Brief for Appellant at 13. We address them in turn. A. Prevailing law
A joint amicus brief supporting Mother's position was submitted by Professor Kara R. Finck of the University of Pennsylvania Law School, together with the following organizations: Juvenile Law Center; American Civil Liberties Union of Pennsylvania; Community Justice Project; Community Legal Services, Inc.; National Association of Counsel for Children; National Coalition for a Civil Right to Counsel; and Pennsylvania Legal Aid Network (collectively, the "Amici for Reversal").
A joint amicus brief supporting CYF and the GAL was submitted by Professor Lucy Johnston-Walsh of the Penn State Dickinson School of Law, together with the following organizations: Support Center for Child Advocates; Defender Association of Philadelphia; and Dauphin County Social Services for Children & Youth (collectively, the "Amici for Affirmance").
First, Mother asserts D.L.B . wrongly assumed that counsel appointed pursuant to Section 2313(a) may represent a child's best interests. She states that, in L.B.M. , the three-Justice plurality, joined by the concurrence, agreed that Section 2313(a) requires that the legal interests of the child be represented, and further, that the appointment of counsel is a necessary measure to ensure such representation occurs. See Brief for Appellant at 14-17. She concludes by suggesting that a majority of the L.B.M . Court disapproved the concept that Section 2313(a) counsel can ever represent a child's best interests. See id. at 17-18.
As developed above, four Justices in L.B.M . agreed that, where a child's legal and best interests do not diverge in a termination proceeding, an attorney-GAL representing the child's best interests can also fulfill the role of the attorney appointed per Section 2313(a) to represent the child's legal interests. See supra note 3. This majority view of the Justices was apparent from the face of the opinions in L.B.M. , as the Superior Court has recognized on multiple occasions. See D.L.B. , 166 A.3d at 329 ; In re Adoption of T.M.L.M. , 184 A.3d 585, 588 (Pa. Super. 2018).
The GAL highlights Justice Baer's observations that termination proceedings often arise from dependency proceedings, and continuity of representation can be beneficial. See L.B.M. , 639 Pa. at 454, 161 A.3d at 188 & n.6 (Baer, J., dissenting). She proffers that, where no conflict exists, requiring two attorneys to represent the child would impose unnecessary financial burdens on public agencies. See Brief for Appellees at 25; accord Brief for Amici for Affirmance at 22 ("[T]he Pennsylvania counties that would be asked to pay for separate Section-2313(a) lawyers are and are likely to remain in difficult financial condition with a great many critical needs vying for terribly limited resources. It is one thing to impose expense on those budgets ... when there is a conflict; it is quite another to impose that expense when neither the law nor the facts ... suggest such a conflict."); cf. id. at 17-18 (asserting that since L.B.M. was decided, amicus Defender Association has litigated approximately 200 TPR petitions where the court appointed separate counsel, and in virtually every case there has been no conflict between the GAL's and counsel's respective positions).
Furthermore, all four Justices in a responsive position indicated that, where a child is too young to express a preference, it would be appropriate for the GAL to represent the child's best and legal interests simultaneously. See L.B.M. , 639 Pa. at 448, 161 A.3d at 184 (Saylor, C.J., joined by Todd, J., concurring); id. at 461, 161 A.3d at 192 (Mundy, J., joined by Baer, J., dissenting). Although that circumstance was not before the L.B.M . Court, we now expressly reaffirm these legal principles in the context of the present case, as they are material to the result. See generally Pap's A.M. v. City of Erie , 553 Pa. 348, 357, 719 A.2d 273, 278 (1998) (explaining that a holding arises from a fragmented decision when a majority of Justices are in agreement on the legal point at issue), rev'd on other grounds , 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Therefore, we disagree with Mother's contention that L.B.M . reflects "prevailing case law of the Commonwealth" that an attorney-GAL representing the child's best interests can never satisfy the mandate embodied in the first sentence of Section 2313(a), Brief for Appellant at 17, and that D.L.B. 's"assumption" along these lines was incorrect.
B. Presumption for non-communicative children
We have reversed the order of Mother's second and third arguments for ease of discussion.
Next, Mother addresses the presumed legal interests of a child who cannot communicate information relevant to termination proceedings. She does not claim that the children in this case would have been able meaningfully to express their preferred outcome or otherwise direct counsel's representation of their legal interests. Rather, she agrees the children would not have been able to do so and states that, therefore, "the question is what presumption should be made about the child's legal interest, i.e. , their preferred outcome, when the child is nonverbal or unable to satisfactorily verbalize their preferred outcome." Brief for Appellant at 23. Mother contends that the Superior Court assumed there can be no conflict of interest between the child's best and legal interests in such circumstances. She argues that such assumption was in error. Instead, she maintains, the child should be presumed as a matter of law to oppose termination – thereby creating a conflict whenever the GAL believes that termination would be in the child's best interests.
The parties agree that, due to the children's very young age (two and three years old), they cannot have formed a subjective, articulable preference to be advanced by counsel during the termination proceedings, and this is entirely consistent with the record. It follows that the legal interests to be represented by Section 2313(a) counsel – which, again, are synonymous with the child's preference, see In re L.B.M. , 639 Pa. at 432, 161 A.3d at 174 – were not ascertainable during the termination proceedings. The question then becomes whether the requirement of Section 2313(a), that counsel be appointed to "represent the child" in a contested TPR proceeding, can be deemed to have been fulfilled by an attorney-GAL who has already been appointed and is present in those proceedings, advocating for the child's best interests (which may be denial of the TPR petition, depending on the facts of the case).
Conversely, Pennsylvania's Rules of Professional Conduct refer to "children as young as five or six years of age ... having opinions which are entitled to weight in legal proceedings concerning their custody." Pa.R.P.C. 1.14, Explanatory Comment 1.
The statute does not provide a clear answer to this question, as it does not expressly contemplate the circumstance that the child's wishes cannot be ascertained. We therefore look for guidance to the analogous provision of the Juvenile Act, which does contemplate that situation. Section 6311 of the Juvenile Act initially states that the guardian ad litem is to "represent the legal interests and the best interests of the child." 42 Pa.C.S. § 6311(a). It then specifies that the guardian ad litem must "[a]dvise the court of the child's wishes to the extent that they can be ascertained and present to the court whatever evidence exists to support the child's wishes." 42 Pa.C.S. § 6311(b)(9) (emphasis added). By straightforward implication, if the wishes of the child cannot be ascertained, the GAL has no duty to "advise the court" of such wishes. For purposes of the proceeding, such wishes do not exist. That is not merely a legal fiction. As explained above, it comports with reality to the extent any participant in the proceedings can discern it. Moreover, and contrary to Mother's argument, it would be tenuous to simply presume a particular preference by the child as a matter of law.
The third sentence of paragraph (b)(9) – which provides that no conflict of interest arises from a difference between the child's wishes and the GAL's needs-and-safety recommendation as to the child's placement and services – has been suspended insofar as it "is inconsistent with [Juvenile Court] Rules 1151 and 1154, which allows for appointment of separate legal counsel and a [GAL] when the [GAL] determines there is a conflict of interest between the child's legal interest and best interest." Pa.R.J.C.P. 1800(3) ; see L.B.M. , 639 Pa. at 433 n.4, 161 A.3d at 175 n.4.
Such a circumstance does not negate the mandate of Section 2313(a) that counsel be appointed to "represent the child" in contested TPR proceedings. It does, however, bear on the question of whether a conflict arises if the trial court allows the attorney-GAL to fulfill that mandate. As a matter of sound logic, there can be no conflict between an attorney's duty to advance a subjective preference on the child's part which is incapable of ascertainment, and an attorney's concurrent obligation to advocate for the child's best interests as she understands them to be. Thus, we conclude that where an attorney-GAL is present in such proceedings undertaking the latter task (advocating for the child's best interests), Section 2313(a) does not require the appointment of another lawyer to fulfill the former (advancing the child's unknowable preference).
Mother observes there was no order appointing the dependency GAL as GAL for the termination proceedings. See Reply Brief for Appellant at 1. However, she concedes that Attorney Moore "verbally" entered her appearance as GAL at the time of the hearing. Brief for Appellant at 20. She has also explained that, as a matter of local custom in Allegheny County, the GAL appointed for dependency proceedings "automatically" represents the same dependent child in any follow-on involuntary TPR proceedings. In re T.S. , Nos. 364 & 365 WDA 2017, 175 A.3d 1118 (Pa. Super.), Appellant's Reply to Supplemental Argument at 5 n.1 (filed July 20, 2017).
It would be a better practice for the court to place an order on the record formalizing the GAL's role for termination purposes. See L.B.M. , 639 Pa. at 454, 161 A.3d at 188 (Baer, J., dissenting). Nevertheless, we are disinclined to elevate form over substance. See id. ; cf. Commonwealth v. D'Amato , 579 Pa. 490, 517-18, 856 A.2d 806, 822 (2004) (holding that, where a lawyer who had not entered his appearance pursuant to the criminal procedural rules effectively represented a defendant during a critical stage of trial, the technical defect did not deprive the defendant of his right to counsel).
Mother disagrees with the above based on her contention that, in the case of a pre-verbal child, the law should indeed presume a preference on behalf of the child, and that it should presume the child opposes termination. Mother rests her argument in this regard on certain passages from the Supreme Court's decision in Santosky v. Kramer , 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). See Brief for Appellant at 23-25.
In Santosky , the Court reviewed a New York State statute which bifurcated termination proceedings into two phases: a fact-finding phase designed to ascertain whether the parent was unfit – or, in the words of the statute, the child was "permanently neglected" – and a dispositional phase to determine what placement would serve the child's best interests. See Santosky , 455 U.S. at 748, 102 S.Ct. at 1392. The second phase would only be reached if the parent was found to be unfit at the conclusion of the first phase. Under the New York enactment, the party petitioning for termination could prevail in the fact-finding phase through proof of parental unfitness by a fair preponderance of the evidence. The question before the Court was whether that relatively low evidentiary standard satisfied due process. The Court held that it did not and that, in view of the nature of a parent's right to her natural children, proof by at least clear and convincing evidence was constitutionally required. See id. at 769, 102 S.Ct. at 1403. Mother notes that, in rejecting the preponderance-of-the-evidence standard, Santosky indicated that "until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship," and that in this phase the state cannot simply assume that a child and his parents are adversaries. Id. at 760, 102 S.Ct. at 1398.
However, it is important to recognize the context in which these statements were made. The Supreme Court's entire discussion related to how the risk of erroneous fact-finding should be allocated as between the state and the parent. The Court first recognized that, under due process, the function of a standard of proof is to allocate the risk of error between competing parties through consideration of the comparative loss each would suffer as a result of erroneous fact-finding. The Court recited the well-known concept that the preponderance-of-the-evidence standard applies in civil disputes over money damages because society has only a minimal interest in the outcome and, in fairness, the litigants should share the risk of error equally. On the other hand, the majority observed, when the government initiates criminal proceedings to deprive an individual of life or liberty, the beyond-a-reasonable-doubt standard obtains because of the severe consequences to the individual and the substantial societal loss occasioned when an innocent person is imprisoned. See id. at 755-58, 102 S.Ct. at 1395-97 ; see also Commonwealth v. Maldonado , 576 Pa. 101, 109, 838 A.2d 710, 715 (2003) (discussing the function of the various standards of proof in similar terms). Turning to a state-initiated petition under New York law, the Court concluded that an erroneous finding of permanent neglect would result in a more significant loss than an erroneous finding of parental fitness. See Santosky , 455 U.S. at 761, 102 S.Ct. at 1399. Given this "disparity of consequence," id. , the Court concluded that clear and convincing evidence of parental unfitness was constitutionally necessary.
When viewed in this context, it is evident that the Court's expressions about the child's interest were made solely to emphasize that the proceeding is a contest between the state and the parent, and not one in which equal but opposite interests of the parent and child are pitted against each other. See id. at 759, 102 S.Ct. at 1398 (explaining that the fact-finding phase under New York law is not intended to "balance the child's interest in a normal family home against the parents' interest in raising the child," but instead, it "pits the State directly against the parents"). Along these lines, the Court clarified that, although the child and his foster parents may be "deeply interested in the outcome of the contest," at the fact-finding phase "the focus emphatically is not on them." Id. ; see also id. at 761, 102 S.Ct. at 1399 ("Since the factfinding phase of a permanent neglect proceeding is an adversary contest between the State and the natural parents, the relevant question is whether a preponderance standard fairly allocates the risk of an erroneous factfinding between these two parties. " (emphasis added) ). That being the case, as long as trial courts require the state to prove parental unfitness – or, under Pennsylvania's law, grounds for termination, see 23 Pa.C.S. § 2511(a) – by at least clear and convincing evidence, the child's status as a non-adversary has been folded into the analysis and the Due Process Clause is satisfied.
Notably, the question of what a very young, pre-verbal child's legal interests should be presumed to be within proceedings that satisfy due process was not before the Santosky Court. Further, the Court did not indicate that such a child is deemed to have a constitutionally protected interest in remaining with his natural parents, and its emphasis that the proceeding only involves the parents' and the state's respective interests contradicts any such precept. If this were not so, moreover, it would call into question whether due process requires proof by clear and convincing evidence in circumstances where an older, verbal child directs his attorney to advocate in favor of termination. Santosky cannot reasonably be understood to suggest that due process would permit the state to prove its case by a less exacting evidentiary standard in that situation – again, because the Supreme Court's focus was not on the child's legal interests, but on those of the parent.
Pennsylvania's proceedings satisfy due process as set forth in Santosky , as the grounds for termination must be proved by clear and convincing evidence. See In re T.R. , 502 Pa. 165, 166-68, 465 A.2d 642, 642-43 (1983) ; In re T.S.M. , 620 Pa. 602, 628, 71 A.3d 251, 267 (2013).
In light of the above, when the passages of Santosky on which Mother relies are understood in their context, they do not undermine our conclusion that it would be inadvisable for us to impose a legal presumption as to the preferred outcome of a child who is too young to formulate a subjective, articulable preference.
C. Presumption that harmless-error analysis can be used
Finally, Mother maintains D.L.B . wrongly assumed that a post-hoc appellate conflict analysis can be performed to assess whether the failure to appoint Section 2313(a) counsel was error. She notes that failure to appoint counsel as required constitutes structural error and posits that a remand for the appointment of counsel is always necessary due to the nature of the child's rights, as the intermediate court previously recognized in In re Adoption of G.K.T. , 75 A.3d 521 (Pa. Super. 2013). See Brief for Appellant at 20.
To the extent Mother indicates that structural error is not subject to harmless error analysis, by definition she is correct. However, structural error cannot arise unless the trial court erred. While a majority of the L.B.M. Court agreed that the error under review was structural, the children in that matter were able to express their thoughts concerning whether they wanted to stay with their natural parent. Here, by contrast, and as developed above, the children were too young to have had any such capability. We have determined an attorney-GAL who is present and representing a child's best interests can properly fulfill the role of Section 2313(a) counsel where, as here, the child at issue is too young to be able to express a preference as to the outcome of the proceedings. Thus, the trial court did not err in allowing KidsVoice, the children's guardian ad litem , to act as the sole representative for T.S. and E.S. Moreover, G.K.T . is distinguishable in that, although the child in that case was very young and pre-verbal, no attorney represented the child at all.
IV. Conclusion
In sum, we hold that a child's statutory right to appointed counsel under Section 2313(a) of the Adoption Act is not subject to waiver. We additionally reaffirm certain principles agreed upon by a majority of Justices in L.B.M ., namely, that during contested termination-of-parental-rights proceedings, where there is no conflict between a child's legal and best interests, an attorney-guardian ad litem representing the child's best interests can also represent the child's legal interests. As illustrated by the present dispute, moreover, if the preferred outcome of a child is incapable of ascertainment because the child is very young and pre-verbal, there can be no conflict between the child's legal interests and his or her best interests; as such, the mandate of Section 2313(a) of the Adoption Act that counsel be appointed "to represent the child," 23 Pa.C.S. § 2313(a), is satisfied where the court has appointed an attorney-guardian ad litem who represents the child's best interests during such proceedings.
For the reasons given, we affirm the order of the Superior Court.
Justices Baer, Todd and Mundy join the opinion.
Justice Dougherty joins Parts I and II of the opinion, as well as the mandate, and files a concurring opinion.
Justice Donohue files a concurring and dissenting opinion.
Justice Wecht files a dissenting opinion.
JUSTICE DOUGHERTY, concurring
I join Sections I and II of the majority opinion, and concur in the result as to the remainder. I write separately to note what is, in my view, a critical difference between this case and In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172 (2017).
In L.B.M. , the termination of parental rights (TPR) proceedings were initiated by the guardian ad litem (GAL) on behalf of an eight-year-old, articulate child who equivocated over his preferred outcome. Id. at 176-177. The unanswerable question giving rise to structural error under those circumstances was how the child's preferences might have been advanced more definitively had legal counsel been appointed as required under 23 Pa.C.S. § 2313(a). Id. at 182. There was manifest potential for a conflict of interest between the child's best interests and legal interests in the GAL-attorney's zealous pursuit of the termination of the mother's parental rights.
Here, there is no dispute over the children's preference: the parties agreed they cannot have formed one. See Majority Opinion, op. at 1089. Moreover, the Allegheny County Office of Children Youth and Families (CYF) initiated the TPR proceedings, and was involved with the children almost since birth, having custody of the two-year-old and three-year-old for over half their young lives. Id. at 1083–84. The GAL-attorney represented the children's best interests and legal interests without an apparent conflict of interest. Under the circumstances presently before us, I consider the appointment of separate counsel to represent the child's legal interests to be unnecessary.
I would not hold the preferences of very young or pre-verbal children, either in favor of termination of parental rights or opposed to it, may never be ascertained.
For purposes of this Concurring and Dissenting Opinion, I refer to such child as a "non-expressive" child.
We defined the terms: "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." L.B.M. , 161 A.3d at 174 (citations omitted). Depending on the case and upon the child involved, these interests can diverge.
JUSTICE DONOHUE, concurring and dissenting
As this Court held in In re L.B.M. , 639 Pa. 428, 161 A.3d 172 (2018), the clear and unambiguous language of 23 Pa.C.S. § 2313(a) requires that the orphans' court "appoint counsel to represent the child" in a proceeding to terminate her parents' rights, which we further stated means "the child's preferred outcome." Id. at 174. Given the age of the children and the facts of record, we were not asked in L.B.M. to decide the question presented here – what is the legal interest of a child too young to express a desired outcome?1 For the reasons explained in this Concurring and Dissenting Opinion, it is my view that there is a presumption that a child's legal interest is aligned with her parent, and in a contested termination proceeding a non-expressive child is presumed to oppose termination of her parent's rights.
The Majority has concluded that since a non-expressive child cannot make her desired outcome known to counsel, the answer is self-evident – the child has no wishes for purposes of the termination proceeding. See Majority Op. at 1089–90 ("[I]f the wishes of the child cannot be ascertained, the GAL has no duty to "advise the court" of such wishes. For purposes of the proceeding, such wishes do not exist."). The problem with this conclusion is readily apparent – section 2313(a) mandates that the orphans' court "appoint counsel to represent the child" in the proceeding. We unanimously agreed in In re L.B.M. that section 2313(a) counsel must represent "the child's preferred outcome." The logical extension of the Majority's holding is that a child who cannot express a preferred outcome has no need for the appointment of counsel under section 2313(a) since the child has no legal interest (i.e., no preferred outcome).
Apparently recognizing the dilemma, the Majority resolves it by importing language from section 6311(b) of the Juvenile Act, which governs the powers and duties of a GAL representing a child in a dependency action, to section 2313(a) of the Adoption Act. Id. at 1089–90. Respectfully, in my view, the Majority's approach is fundamentally flawed for several reasons.
The Majority further suggests that a majority of Justices in the responsive posture in In re L.B.M. already held that "where a child is too young to express a preference, it would be appropriate for the GAL to represent the child's best and legal interests simultaneously," stating that it was now "expressly reaffirm[ing]" this determination here. Majority Op. at 1088 (citing In re L.B.M. , 161 A.3d at 184 (Saylor, C.J., joined by Todd, J., concurring); id. at 192 (Mundy, J., joined by Baer, J., dissenting). Respectfully, we cannot reaffirm a statement that was never affirmed as a holding. As the Majority recognizes, "that circumstance was not before the L.B.M. Court," as L.B.M. involved an expressive child whose legal interest was contrary to the position represented by his GAL in the termination proceeding. See In re L.B.M. , 161 A.3d at 175-77. Clearly, those statements were pure dicta, which "has no precedential value." Castellani v. Scranton Times, L.P. , 633 Pa. 230, 124 A.3d 1229, 1243 n.11 (2015). This case is the first case that requires the Court to decide, based on developed advocacy, whether there is a legal interest recognized in a non-expressive child.
See also In re D.L.B. , 166 A.3d 322 (Pa. Super. 2017). I discuss D.L.B. and its jurisprudential infirmity infra.
First, it is a well-settled principle of statutory construction that when interpreting a statute, courts are bound by the plain, unambiguous language of a statute, and "the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b). "[W]here the legislature includes specific language in one section of the statute and excludes it from another, the language should not be implied where excluded." Fonner v. Shandon, Inc. , 555 Pa. 370, 724 A.2d 903, 907 (1999) (citing Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824, 832 (1962) ). "Moreover, where a section of a statute contains a given provision, the omission of such a provision from a similar section is significant to show a different legislative intent." Id. (citing Commonwealth v. Bigelow , 484 Pa. 476, 399 A.2d 392, 395 (1979) ). "In construing a statute, the court must ascertain and give effect to the legislative intention as expressed in the language of the statute, and cannot, under its powers of construction, supply omissions in a statute, especially where it appears that the matter may have been intentionally omitted[.]" L.S. ex rel. A.S. v. Eschbach , 583 Pa. 47, 874 A.2d 1150, 1156 (2005) (quoting Kusza v. Maximonis, 363 Pa. 479, 70 A.2d 329, 331 (1950) ).
Section 6311 of the Juvenile Act provides that a GAL in a dependency proceeding is tasked with representing both the best interest and legal interest of the child, 42 Pa.C.S. § 6311(a), and that in the latter capacity, the GAL must
[a]dvise the court of the child's wishes to the extent they can be ascertained and present to the court whatever evidence exists to support the child's wishes. When appropriate because of the age or mental and emotional condition of the
child, [the GAL shall] determine to the fullest extent possible the wishes of the child and communicate this information to the court.
42 Pa.C.S. § 6311(b)(9) (emphasis added). Section 2313(a) of the Adoption Act, on the other hand, simply requires the orphans' court to "appoint counsel to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents." 23 Pa.C.S. § 2313(a). It calls for the appointment of "counsel," not a GAL, which is the role that section 6311 of the Juvenile Act addresses. Section 2313(a) contains no provision to allow for a dual representation role in termination proceedings and makes no exception to the required representation of the child's legal interests for circumstances where the attorney cannot ascertain the child's wishes.
The General Assembly was unquestionably aware that involuntary termination proceedings are often brought when children are very young and unable to express their preferences. In fact, the General Assembly adopted the federal Adoption and Safe Families Act, which was enacted in an effort to curb the number of children that were growing up in foster care by requiring, inter alia, that juvenile courts ensure that petitions to terminate parental rights are filed, in appropriate cases, once a child had been in an out-of-home placement for fifteen of the past twenty-two months. See 42 U.S.C. § 675(5)(E) ; 42 Pa.C.S. § 6351(f)(9) ; In re Adoption of S.E.G. , 587 Pa. 568, 901 A.2d 1017, 1019 (2006).
The General Assembly could have written section 2313 to require the appointment of counsel only where the child could express a desired outcome. The General Assembly could have included a provision in section 2313 that counsel representing the child is only required to communicate the child's wishes to the extent they can be ascertained, as it did in section 6311(b) of the Juvenile Act. It could have provided for a GAL, instead of counsel, to represent a non-expressive child. The General Assembly did not choose any of these options. Because the General Assembly omitted from the Adoption Act provisions that it chose to include under the Juvenile Act, reading this language into the Adoption Act runs directly counter to our rules of statutory construction.
I also find it significant that when counsel (and not a GAL) represents a child in a dependency matter, the Juvenile Act makes no provision for counsel to represent the child's best interest or to limit the representation of the child based on what counsel can "ascertain" from the child. See 42 Pa.C.S. § 6337.1(a) ; Pa.R.J.C.P. 1151. Rather, as in section 2313 of the Adoption Act, where "counsel" represents a child in a dependency proceeding, the attorney solely represents the child's legal interests, without exception. 42 Pa.C.S. § 6337.1(a) ; Pa.R.J.C.P. 1154.
I concur with the Majority on two points. First, I agree that the waiver arguments advanced by Allegheny County's Office of Children, Youth and Families and by the GAL are unavailing. See Maj. Op. at 1086–87. Second, I agree that T.H.-H. ("Mother")'s contention that a presumption should exist to the effect that young, pre-verbal children's legal interests equate to preservation of a family bond is both unsupported in law and unnecessary. See id. at 1090–92.
Moreover, the stakes are very different in dependency and termination proceedings. Termination of a parent's rights is, in essence, a death sentence for the parent/child relationship, as it is permanent and irrevocable. See In Interest of Lilley , 719 A.2d 327, 329 (Pa. Super. 1998). A finding of dependency, while also very serious, is a temporary intrusion into the life of a family. It is a remediable situation, which, ideally, will conclude with the family remaining intact. See 42 Pa.C.S. § 6301(b)(1) (identifying the purpose of the Juvenile Act as, inter alia, "[t]o preserve the unity of the family whenever possible"). For this reason as well, I find section 6311(b)'s explanation of the role of a GAL in a dependency proceeding to be inconsequential and of little value when interpreting the child's statutory right to counsel in a termination proceeding. In my view, it is of the utmost importance that a child's legal interest in a termination proceeding is squarely and solely represented by her appointed counsel.
It is a well-settled constitutional principle that a parent has a fundamental liberty interest "in the care, custody, and management of their child." Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). I acknowledge that the United States Supreme Court has not yet ruled upon whether a child has a separate and independent constitutionally protected right to be cared for and managed by her parent. Michael H. v. Gerald D. , 491 U.S. 110, 130, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) ("We have never had occasion to decide whether a child has a liberty interest, symmetrical with that of her parent, in maintaining her filial relationship."). In Santosky , however, the high Court recognized that a child has a right to the preservation of the parent/child relationship that is intertwined with the right of the parent. In Santosky , the Court was tasked with determining the burden of proof that must be met to involuntarily terminate a parent's right to his child, and held that, at a minimum, termination cases must be proven by clear and convincing evidence. Santosky , 455 U.S. at 769, 102 S.Ct. 1388. In so concluding, the Santosky Court rejected the argument that proof by a preponderance of the evidence was the appropriate standard in a termination case because "the child's interest in a normal family home" must be given equal weight "against the parents' interest in raising the child." Id. at 759, 102 S.Ct. 1388. The Court stated that "the State cannot presume that a child and his parents are adversaries" in a termination proceeding, as they "share a vital interest in preventing erroneous termination of their natural relationship." Id. at 760, 102 S.Ct. 1388.
The Majority focuses on the adversarial posture of a parent versus the state as the driving force in the placement of the burden of proof and the ultimate holding of Santosky. See Majority Op. at 1091–92. True as this may be, in the same context, we must be cognizant of our General Assembly's mandate that the child at the center of the termination proceeding must have counsel in the proceeding who picks a side in the contest and participates, either for or against the parent's position. Santosky teaches that we cannot presume in this regard that the child is adverse to the parent's position.
Santosky reflects a clear recognition that the child in a termination proceeding has a legal interest in maintaining the parent/child relationship, what is referred to as "their natural relationship." Santosky , 455 U.S. at 760, 102 S.Ct. 1388. This conclusion is informed not only by the human experience but by logic, as it would be incongruous for a parent to have a fundamental constitutional right to raise his child, but for the child to be born completely untethered in this regard to her parents. The child unquestionably has an interest in the outcome of a termination decision, as it dictates not only whether the parent/child relationship will remain intact, but whether other consanguineous relations will continue and whether the child will have a right to inherit and receive other financial benefits from her parents and their lineage. Our General Assembly has recognized that a child has a protectable legal interest at a termination proceeding based on its decision to require counsel to represent a child in a contested termination proceeding – if a child had no interest to protect, there would be no need for the child to have legal representation. The Majority's conclusion that a non-expressive child has no legal interest to protect in a termination proceeding, and that her right to counsel is therefore protected by a GAL representing her best interest, effectively creates a presumption that the child is in favor of termination in every case in which the GAL agrees with the petitioning party's recommendation to terminate parental rights (or where the GAL is the petitioner). See Majority Op. at 1090 ("there can be no conflict between an attorney's duty to advance a subjective preference on the child's part which is incapable of ascertainment, and an attorney's concurrent obligation to advocate for the child's best interests as she understands them to be"); see also 23 Pa.C.S. § 2512(a) (identifying who may file a petition to terminate parental rights). The reality in the vast majority of termination cases is that the GAL is an active participant providing zealous representation to his or her client through the presentation of evidence in support of termination. In such circumstances, the child is, by necessary implication, an adversary to her parents. Thus, in these cases, the Majority's conclusion that an attorney need only represent a non-expressive child's best interest at a termination proceeding is in direct contravention to Santosky 's admonishment against this presumption. See Santosky , 455 U.S. at 760, 102 S.Ct. 1388.
The legislative session notes from the consideration of House Bill 213 (which contained the original version of section 2313, see 1980, Oct. 15, P.L. 934, No. 163, § 1, effective Jan. 1, 1981) by the General Assembly support my conclusion here. At one point during consideration of the bill by the House, one state representative proposed an amendment thereto that would strike the requirement for the appointment of an attorney to represent the child in contested termination proceedings. See H.B. 213, 48 Pa. Legis. J. – House at 1582 (June 16, 1980) (amendment proposed by Representative Dorr). A majority of the House opposed the amendment, however, with the proponent of the original bill, Representative J. Michael Schweder, explaining, "One of the most important parts or tenets of this current legislation is that for the first time we are going to make the rights of the child equal to those of the natural parents and to the adoptive parents, and one of the necessary requirements for doing that is to provide legal representation for the child in those proceedings." Id. (statement of Representative Schweder) (emphasis added).
After the TPR petition in this case was filed on November 9, 2016, the trial court held a permanency review hearing in the dependency proceeding on November 29, 2016, whereupon it scheduled another permanency review hearing for March 28, 2017.
Justice Wecht takes no position as to whether a non-expressive child's legal interests are equivalent to the child's best interests. See Dissenting Op. (Wecht, J.) at 1100–01. However, this is the precise issue that is before this Court in this matter, as all participants are in agreement that the children are not capable of expressing a desired outcome. See infra , p. 1099. Justice Wecht further writes to advance a protocol where the orphans' court is tasked with making the determination, in all cases (including this one), whether the child is expressive of her wishes in the termination proceeding. He does not state, one way or the other, what the orphans' court is to do if it agrees with all of the participants in this case that the children are incapable of expressing a preference.
In general, county agencies do not petition for termination of parental rights unless and until the child has been dependent for a significant amount of time. See generally 42 Pa.C.S. § 6351 (requiring the trial court to determine whether the agency had filed for termination of parental rights when the child has been in placement for fifteen of the last 22 months). During that time, the agency, the court, and the parents work toward reunification. Only when it appears that those efforts are in vain does the agency petition to terminate a parent's rights. While assessment of a pre-verbal child's legal interest must include respect for and consideration of the value of retaining the familial connection, there is often in practice very little of a familial bond by the time a case reaches a TPR hearing.
Of course, the parent's fundamental right to the care, custody and management of his child is not interminable. A parent can voluntarily waive the fundamental liberty interest that he has in rearing his child and relinquish his parental rights. See 23 Pa.C.S. §§ 2501 - 2504. If the parent does not voluntarily relinquish his parental rights, but the petitioner nonetheless proves, by clear and convincing evidence, that termination is warranted under section 2511(a) and (b), the parent likewise forfeits this constitutional right. See generally , 23 Pa.C.S. § 2511(a) - (b) ; Santosky , 455 U.S. at 760-61, 102 S.Ct. 1388.
The child's intertwined legal interest to have the care, custody and management of her parents is likewise malleable. An expressive child can communicate her preference in favor of termination. As a majority of the Court held in In re L.B.M. , in such circumstances, if the child's dependency GAL agrees that termination is in the child's best interest, that attorney can represent the child in the termination proceeding, as there would be no conflict. See In re L.B.M. , 161 A.3d at 184 (Saylor, J., concurring); id. at 185 (Baer, J., dissenting).
Consistent with Santosky , the human experience and our General Assembly's mandate that counsel represent a child in a termination proceeding, in my view we must presume that the child's preference (and thus her legal interest) is to maintain the parent/child relationship. Consistent with our holding in In re L.B.M. and the obligation of counsel to represent his or her client's wishes (see Pa.R.P.C. 1.2(a) ), this presumption is rebuttable but only in the circumstance where the child expresses a contrary position. If a child is non-expressive, or if a child does not or cannot otherwise make a determination as to her view, the presumption remains that the child's legal interest is in opposing termination.
In light of the recurring issues surrounding appointment of counsel for the child in termination proceedings, it is critical that the appointment and all proceedings surrounding it must be on the record. Moreover, the appointment must be made sufficiently in advance of the commencement of the termination proceedings to allow parents the opportunity to raise an objection to an appointment based on a conflict of interest and for the orphans' court to rule on the disqualification motion. In light of these considerations and my view that there is a rebuttable presumption against termination of parental rights, I envision the following sequence of events in the orphans' court.
Pursuant to section 2313(a) of the Adoption Act, upon the filing of a petition to terminate parental rights, the orphans' court must undertake the appointment of counsel to represent the child. 23 Pa.C.S. § 2313(a). If the orphans' court wishes to appoint the child's dependency GAL as counsel to represent the child in the termination proceedings, the GAL must first determine whether the child is expressive, and if so, the child's preferred outcome of the termination proceeding. If the child is non-expressive (or is expressive and opposes termination) and the GAL agrees that termination of parental rights is not in the child's best interest, the GAL shall so inform the orphans' court and the other parties. The orphans' court thereafter may enter an order appointing the dependency GAL as counsel for the child in the termination proceeding. Otherwise, the orphans' court must appoint new counsel to represent the child.
If, following the exercise of due diligence, the GAL concludes that the child is expressive and that the child does not oppose termination of her parents' rights, and the GAL likewise concludes that termination is in the child's best interest, then the GAL must advise the orphans' court of this conclusion. The child's parents may object to the appointment of the dependency GAL as the child's counsel based on evidence that the child is either non-expressive or that the expressive child opposes termination. Where it is the parent's view that the child is not expressive or that the child does not favor termination, their objection would be premised on the contention that a conflict of interest exists that precludes the GAL's appointment as counsel for the child. Upon parents' objection, the orphans' court must schedule a hearing to determine whether there is a conflict between the child's best and legal interests such that the GAL is precluded from being appointed as the child's counsel in the termination proceeding.
Dependency proceedings continue at the time of the termination hearing and thereafter. Consistent with our Rules of Professional Conduct, an attorney cannot advocate in support of adoption in the dependency proceedings and simultaneously represent the child in opposition to termination in the termination proceeding, as the attorney's representation in the dependency proceeding would be directly adverse to the child's interest in the termination proceeding. See Pa.R.P.C. 1.7(a)(1).
Contrary to the assertion in the Concurring and Dissenting Opinion, see Conc. & Diss. Op. at 1097 n.5, while I do not support a presumption regarding a non-verbal child's legal interests, I do state that Section 2313(a) counsel is tasked to determine the child's legal interests and the trial court must determine the child's best interests. These are separate inquiries and separate obligations.
The authority of a trial court judge to decide whether an attorney is laboring under a conflict of interest is well settled:
A trial judge, in the exercise of his inherent power to control litigation over which he is presiding and his duty to supervise the conduct of lawyers practicing before him so as to prevent gross impropriety, has power to act where the facts warrant it. This supervisory power is analogous to a judge's power to hold in contempt of court a lawyer guilty of contumacious conduct in the trial of a case. Where a breach of ethics is made to appear, the relief is usually the granting of a motion to disqualify and remove the offending lawyer[.]
Slater v. Rimar, Inc. , 462 Pa. 138, 338 A.2d 584, 589 (1975) (footnotes omitted). If, following a hearing, the orphans' court finds that there is a potential conflict between the GAL's representation of the child's legal interest and the concurrent representation of the child's best interests in the ongoing dependency proceedings, the orphans' court must appoint new counsel to represent the child at the termination hearing. See Seifert v. Dumatic Indus. Inc. , 413 Pa. 395, 197 A.2d 454, 455 (1964) ("The test in such cases is not the actuality of conflict but the possibility that conflict may arise."). If, however, the orphans' court is satisfied that the child has expressed her preference in support of termination, the orphans' court may appoint the GAL as the child's counsel in the termination proceeding. Whether it is the GAL or a new attorney, the orphans' court shall thereafter issue an order appointing counsel to represent the child.
Based on my proposed construct, the failure of the parents to object to the appointment of the dependency GAL to represent the child as her counsel prior to the commencement of the termination proceeding would result in waiver of that claim. Nonetheless, I agree with the Majority that in the case at bar, Mother did not waive her argument that the orphans' court improperly failed to appoint counsel to represent the child's legal interests, as the claim currently is not waivable. See Majority Op. at 1087.
In the case at bar, it is uncontested that the children (ages two and three at the time of termination) were unable to express their preferred outcome regarding termination. See Mother's Brief at 23; KidsVoice's Brief at 14; CYF's Brief at 18. Therefore, I conclude that we must vacate the decrees terminating Mother's parental rights to T.S. and E.S. and remand for a new termination proceeding, prior to which the orphans' court must appoint counsel to represent the children's presumptive interest in opposing termination.
In summary, I agree with the Majority's determination, in Part II of its decision, regarding the question of whether Mother waived the issue of the appointment of separate legal counsel to represent the children in the termination proceeding. Otherwise, for the foregoing reasons, I respectfully dissent.
JUSTICE WECHT, dissenting
By statute, our General Assembly has mandated:
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....
23 Pa.C.S. § 2313(a). This is neither a guideline nor a suggestion. It is the law.
In view of this unequivocal statutory command, we very recently held: " Section 2313(a) requires the appointment of counsel who serves the child's legal interests in contested, involuntary TPR proceedings." In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172, 180 (2017). We observed that, "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." Id. 1 We held that "the failure to appoint counsel for a child involved in a contested, involuntary termination of parental rights proceeding is a structural error and is not subject to a harmless error analysis." Id. at 183. We remanded for appointment of counsel and for a new TPR proceeding. Id.
Because four L.B.M. justices agreed that a guardian ad litem ("GAL") who is an attorney can proceed at a TPR hearing to represent both a child's legal interests and her best interests in the event that those interests do not conflict with one another, today's learned Majority approves the trial court's failure to appoint counsel here. In so doing, the Majority validates the lower courts' violation of Section 2313(a).2
I respectfully dissent.3
As I observed for the plurality in L.B.M. , concerns arise when the dependency GAL serves as legal counsel in the TPR proceeding. L.B.M. , 161 A.3d at 181. When the same lawyer acts in the dual capacity of GAL in dependency proceedings and legal counsel in the TPR hearing, role confusion is likely, particularly in circumstances where the child may direct counsel in the TPR hearing, but may not direct the GAL in the dependency proceeding. See id. The likelihood that dependency proceedings will continue after the TPR petition is filed (as indeed happened here4 and in L.B.M. , id. at 176 ) renders toggling between the roles of counsel (serving the child's legal interests) and GAL (serving the child's best interests) unsustainable. "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." Id. Section 2313(a) mandates an independent attorney; the GAL cannot serve both functions. Id. at 181 n.14. The Majority's desire to foster "continuity of representation," Maj. Op. at 1084, does not ameliorate this "two-hat" problem. Nor does it permit us to fashion a judicial nullification of the General Assembly's mandate of legal counsel. For these reasons, I maintain that the attorney-GAL cannot represent the child's legal interests at a contested TPR hearing without running afoul of Section 2313(a).Further, as we held in L.B.M. , the child's best interests are for the trial court to determine. L.B.M. , 161 A.3d at 174. Section 2313(a) reflects the General Assembly's policy determination that counsel is required to advocate on behalf of the child's legal interests. Those legal interests may align with or diverge from the child's best interests. Those legal interests may also align with termination or with preservation of the family unit. Because Section 2313(a) counsel represents solely the child's legal interests, I do not support a presumption that a pre-verbal child's legal interests always dovetail with the child's best interests. Nor do I support a presumption that a pre-verbal child's legal interests always equate with preservation of the putative familial bond.5 The Majority sufficiently refutes Mother's position that our law supports a presumption of preservation. See Maj. Op. at 1092. Instead of leaning on a presumption, Section 2313(a) counsel must make an independent assessment of the child's legal interests. If the child is pre-verbal, then counsel must make use of whatever means are available and appropriate to make that assessment, including, but not limited to, observation of the child with the parents and foster parents and interviews of those involved in the child's case.6
I recognize that a majority of Justices in L.B.M. nonetheless would allow an attorney-GAL to wear both hats at a contested TPR hearing, albeit only in the event that the child's best interests and legal interests are not in conflict. Still, today's Majority takes us further afield. The Majority's approach ensures that any such conflicts will likely be obscured and overlooked, and effectively validates post hoc justifications for trial court violations of Section 2313(a)'s commands. At best, today's Majority has failed to provide adequate guidance for determining whether a conflict in fact exists.
In the case at bar, because the children were very young and thus unable to articulate their wishes, the Majority concludes that "there can be no conflict" between the children's best interests and legal interests. Maj. Op. at 1092. Thus, holds the Majority, Section 2313(a) is "satisfied," id. , because the attorney-GAL could represent the children in the contested TPR hearing. The Majority ventures that a child may be able to express "opinions which are entitled to weight in legal proceedings" by the age of "five or six." Id. at 1089 n.17 (quoting Pa.R.P.C. 1.14, Explanatory Comment 1). Quite apart from the issue of whether an explanatory comment to an attorney conduct rule can afford a precedential guide for our courts, the Majority's discussion effectively begs the question: no standard is provided to guide trial judges.
See Womer v. Hilliker , 589 Pa. 256, 908 A.2d 269, 279 (2006) (noting that an explanatory comment is not part of a rule); Estate of Paterno v. Nat'l Collegiate Athletic Ass'n (NCAA) , 2017 PA Super 247, 168 A.3d 187, 200 n.13 (2017) (stating that "explanatory comments express the opinion of the rules drafting committee and therefore are not binding").
The determination of whether a particular child can or cannot express her interests or desires must be made by the trial court. Often, this will be a highly fact-specific inquiry based not only upon the child's age, but also upon her relative abilities or disabilities, among many other factors. Further, legal counsel often may be able to glean information about even a pre-verbal child's wishes by observing interactions between the child and parent. This Court cannot create and pronounce a bright-line rule that children of a specific age are able or unable to express their legal interests. The trial court, which can observe the children closely and hear testimony about their particular abilities and circumstances, must do so.
Justice Donohue interprets my position as advancing a protocol for determining whether a child is capable of expressing his or her wishes, but not indicating what the court is to do if it finds that the child is non-expressive. See Conc. & Diss. Op. at 1097 n.5. This is incorrect because I only offer this protocol as a comment on the Majority's position that the best interests equate to legal interests when the child is pre-verbal.
As I have explained here and in L.B.M. , the trial court's task is to determine the child's best interests in deciding whether to terminate parental rights while Section 2313(a) counsel represents only the child's legal interests. Because I would not permit the attorney-GAL to be Section 2313(a) counsel, there would be no need to determine whether there is a conflict of interest between legal interests and best interests. Also, because I would not create a presumption in favor of equating a child's best interest to that child's legal interests when the child is pre-verbal, there would be no need for the court to determine if the child is pre-verbal. Instead, as I stated above, see supra at 1101, Section 2313(a) counsel would make an assessment of legal interests using available means.
The only reason that I discuss any protocol, and possibly the reason for Justice Donohue's misstatement of my position, is because a majority of the Court would permit the attorney-GAL to represent the child's legal interests (absent a conflict with best interests). The Court equates those legal interests to best interests when a child is pre-verbal. Hence, I am compelled to work within that framework. So constrained, I suggest the above protocol for determining whether a child is unable to express his or her interests and a protocol for determining whether there is a conflict between those interests. Both of these would offer more protection of the child's statutory right to legal counsel.
Who makes the decision as to whether a conflict exists between legal interests and best interests? One of the L.B.M. dissenters went so far as to suggest that the attorney-GAL herself should be authorized to make that decision, on the basis of her own assessment of professional conduct standards. I disagree. The General Assembly mandated that, in a contested TPR hearing, the court must appoint counsel for the child. The matter is not up for debate, much less for judgment call by an individual attorney-GAL. At a minimum, it is the trial court's duty to determine, following argument and likely following hearing, whether the attorney-GAL can continue as legal counsel or whether a new attorney must be appointed. Any other procedure would pay mere lip service to the child's right to counsel, and would work a judicial nullification of that right.
See L.B.M. , 161 A.3d at 188 (Baer, J. dissenting) (citing Pa.R.P.C. 1.7 ). Rule 1.7 provides:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent.
Pa.R.P.C. 1.7.
In many cases, a factual record will need to be developed, as (for example) when there is disagreement about whether a child is capable of expressing his or her legal interests.
To be sure, the attorney-GAL's opinion as to the existence or non-existence of a conflict between the child's legal interests and best interests is relevant and material to the court's decision. But, before making its determination, the court must hear from the other parties as well. As today's Majority concedes:
The statutory right under Section 2313(a) belongs to the child.... There was no attorney representing solely the children's legal interests who could have raised their rights in the trial court, and the children plainly could not have done so themselves.
Maj. Op. at 1087 (citations omitted). That there will be no one who solely represents the child's legal interests at the time that the trial court appoints Section 2313(a) counsel is precisely why the court must itself determine whether there is a conflict. This analysis may not be delegated or off-loaded to the attorney-GAL.
Following argument (and, preferably, hearing) on the conflict inquiry, the trial court must ensure that the child's right to counsel is protected and must remind all involved that, if the attorney-GAL is permitted to serve as the Section 2313(a) legal counsel, her role has changed from representing best interests to representing legal interests. Additionally, the entry of an appointment order is necessary at the start of the TPR proceedings to drive home the change in role and to provide a reviewing court with the certainty that the child's statutory right to counsel was fully vindicated. I emphasize that it is undisputed that no such order was ever entered by the trial court in this case.
For these reasons, I note my disapproval of the practice described in this case regarding local custom, whereby the dependency GAL automatically shifts to representing the child in the TPR proceeding. See Maj. Op. at 1090 n. 19. Such a practice gives short shift to the child's statutory right to legal counsel, and, indeed, flouts the legislative mandate.
Further complicating the matter is the issue of how these cases should be analyzed on appeal. In L.B.M. , a majority of this Court held that the failure to appoint counsel for a child in a contested TPR hearing was a structural error. L.B.M. , 161 A.3d at 183. Section 2313(a) mandates that counsel be appointed, a circumstance which ensures that all parties, including the child, will have a full and fair opportunity to participate in a contested TPR hearing. "The denial of mandated counsel compromises the framework of the proceedings and constitutes a structural error." Id.
Today's Majority acknowledges this holding, but determines that, because an attorney-GAL representing a child's best interests purportedly satisfies Section 2313(a) when the child cannot verbalize a preference, there was no error in permitting the attorney-GAL here to continue to represent the children in the TPR proceedings. The Majority proceeds to conclude that, because there was no error, there also could be no structural error. Maj. Op. at 1092. By declaring post hoc that Section 2313(a) was not infringed, the Majority puts the proverbial bunny in the hat. I do not believe that this ex post facto validation suffices. Because the trial court erred in failing to appoint counsel, and in failing to inquire of any potential conflict, the Majority errs in allowing the disposition below to stand untroubled.
The infirmities in the Majority's perspective are illustrated by the lower courts' application of L.B.M. to TPR cases. Unfortunately, it appears that courts are taking a harmless error approach: determining retrospectively that there is no record evidence of conflict between the child's best interests and legal interests, and then proceeding on a bootstrap basis to render an after-the-fact finding that there was no structural error; all this, notwithstanding that there was no opportunity at trial to develop a record of any such conflict or even to provide argument on the question. It is for these reasons that I disagree with the Majority's tacit endorsement of In re D.L.B. , 166 A.3d 322 (Pa. Super. 2017).
In D.L.B. , a Superior Court panel reviewed a challenge to the termination of the father's parental rights. After reciting the trial court's findings regarding the father's failure to meet his goals and participate fully in services provided to him, the Superior Court reviewed and analyzed the trial court's basis for terminating the father's parental rights. Id. at 326-29. After determining that the trial court had sufficient grounds for termination, the Superior Court addressed the father's challenge that the trial court had failed to appoint legal counsel for the child, in violation of L.B.M. The Superior Court reasoned that four Justices in L.B.M. would have permitted the GAL to represent the child in the TPR hearing when the child's best interests and legal interests did not conflict. The entire extent of the Superior Court's analysis of that conflict inquiry was simply the following: "As our decision discusses, [the child's] best interests and legal interests were unquestionably well represented by [the GAL] in this case and such interests were never in conflict." Id. at 329. The Superior Court never identified, much less discussed, the child's legal interests. This type of post hoc ratification of the GAL's continued representation of the child in a TPR hearing is not in accord with L.B.M. 's holding regarding structural error, nor does it satisfy the statutory requirement of counsel.
It appears that lower courts are concluding solely that, if there was sufficient evidence to terminate parental rights, there was necessarily no conflict between the child's best interests and legal interests and, ipso facto , no error. This is a textbook harmless error analysis, and it patently defies L.B.M. 's structural error holding.
To be sure, I do not maintain that this happens in every (or even in a majority of) cases. For example, recently, the Superior Court vacated a decree terminating parental rights where the attorney-GAL did not meet with the six-year-old child, did not attempt to ascertain that child's legal interests and, instead, spoke only to the child's best interests at the TPR hearing. In re Adoption of T.M.L.M. , 184 A.3d 585 (Pa. Super. 2018). Still, D.L.B. demonstrates the need for this Court to clarify governing principles.
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Having spent several years presiding in juvenile cases, I recognize and appreciate the importance of delivering permanency to the children involved in these contested TPR proceedings and the value of doing so without undue delay. Nonetheless, in our desire to do right by these children, we cannot overlook or override the right to counsel that the General Assembly has bestowed upon them. By providing post hoc justification for the failure to appoint independent counsel, that is exactly what today's decision does.