J-E01005-19

                          2019 PA Super 281


 IN RE: ADOPTION OF K.M.G.           :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
 APPEAL OF: T.L.G., MOTHER           :
                                     :
                                     :
                                     :
                                     :
                                     :   No. 580 WDA 2018

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

 IN RE: ADOPTION OF: A.M.G.          :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
 APPEAL OF: T.L.G., MOTHER           :
                                     :
                                     :
                                     :
                                     :
                                     :   No. 581 WDA 2018

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

 IN RE: ADOPTION OF S.A.G.           :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
 APPEAL OF: T.L.G., MOTHER           :
                                     :
                                     :
                                     :
                                     :
                                     :   No. 582 WDA 2018

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

 IN RE: ADOPTION OF J.C.C.           :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
J-E01005-19


 APPEAL OF: T.L.G., MOTHER                :
                                          :
                                          :
                                          :
                                          :
                                          :   No. 583 WDA 2018

                   Appeal from the Decree March 5, 2018
     In the Court of Common Pleas of McKean County Orphans' Court at
                            No(s): 42-17-0242


BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., OLSON, J., DUBOW,
        J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., and McLAUGHLIN,
        J.

DISSENTING OPINION BY BENDER, P.J.E.:          FILED SEPTEMBER 13, 2019

      Because I would conclude that this Court, in this case, has the authority

to review sua sponte whether the Guardian ad Litem (GAL) has a conflict in

an involuntary termination of parental rights case, I respectfully dissent.

      The Majority identifies Section 2313 of the Adoption Act, which requires

a court to appoint counsel to represent a child in an involuntary termination

of parental rights proceeding when either one or both parents are contesting

such a determination. See 23 Pa.C.S. § 2313(a). The Majority also cites

recent cases dealing with situations where a GAL has a conflict and, thus, may

not serve as GAL and counsel for a child, i.e., representing both the child’s

best interests and his or her legal interests. Moreover, the Majority recognizes

that the GAL has a duty to notify the court if a conflict is present in the case

and the court then has a duty to appoint separate counsel in those

circumstances. However, the Majority concludes that this Court “only has the

authority to raise sua sponte the issue of whether the lower court appointed


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any counsel for the child, and not the authority to delve into the quality of the

representation.” Majority at 5 (emphasis in original). I disagree.

      In In re T.S., 192 A.3d 1080 (Pa. 2018), our Supreme Court stated that

the right to legal counsel belongs to the child, not the parent.        This is so

because minors do not have the capacity to raise legal claims for themselves.

Id. at 1087. Nor should the child have to rely on a parent or the attorney

representing the child to alert the court that this right is not being enforced.

Id. Therefore, to assure that the child’s right is protected, I would conclude

that this Court may review sua sponte whether there is a conflict, particularly

in light of the fact that a failure to raise a question of separate counsel for the

child is non-waivable.

      Additionally, in response to the Majority’s discussion relating to whether

an issue can be raised sua sponte by this Court, I am aware that no case has

definitively determined that we are permitted to do so in a termination of

parental rights situation.    However, there are also no cases that have

prohibited this action.   To provide further support for the reasons that we

should perform this duty, I rely on Commonwealth v. Stossel, 17 A.3d

1286, 1290 (Pa. Super. 2011), a case that held “that where an indigent, first-

time PCRA petitioner was denied his right to counsel—or failed to properly

waive that right—this Court is required to raise this error sua sponte and

remand for the PCRA court to correct that mistake.” The right to counsel in

conjunction with a first-time PCRA petition is provided for in Pa.R.Crim.P.

904(C).    Likewise, as noted above, in a termination proceeding, the

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appointment of counsel for the child is provided for by 23 Pa.C.S. § 2313. The

Court in Stossel explained its reasoning as follows:

      While the right to legal representation in the PCRA context is not
      constitutionally derived, the importance of that right cannot be
      diminished merely due to its rule-based derivation. In the post-
      conviction setting, the defendant normally is seeking redress for
      trial counsel’s errors and omissions. Given the current time
      constraints of 42 Pa.C.S. § 9545, a defendant’s first PCRA petition,
      where the rule-based right to counsel unconditionally attaches,
      may well be the defendant’s sole opportunity to seek redress for
      such errors and omissions. Without the input of an attorney,
      important rights and defenses may be forever lost.

Stossel, 17 A.3d at 1288 (quoting Commonwealth v. Robinson, 970 A.2d

445, 458-59 (Pa. Super. 2009)).

      Thus, the Stossel decision shows that the importance of the right to

counsel in the PCRA context allows this Court to raise the issue sua sponte.

Nothing the Majority has discussed convinces me that a child’s statutory right

to counsel in a termination case is any less important than an inmate’s rights

when seeking PCRA relief. See In re Adoption of L.B.M., 161 A.3d 172, 180

(Pa. 2017) (stating that “appointment of client-directed counsel optimizes the

protection of the child’s needs and welfare, which form the ultimate issue that

the trial court must resolve before granting the termination”).        In both

situations, where a statutory right to counsel attaches, a failure to correct

such an error at this juncture may be the only opportunity to correct a possible

injustice. By not allowing this Court to review sua sponte whether a conflict

exists as to a child’s representation in the termination of parental rights

proceeding, we are potentially allowing the permanent severing of a child’s


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relationship with his or her birth family without protecting his or her legal

rights and best interests.    “The duty to protect the rights of minors and

incompetents has precedence over procedural rules otherwise limiting the

scope of review and matters affecting the rights of minors can be considered

by this court [sua sponte].” Berry v. Berry, 197 A.3d 788, 797 (Pa. Super.

2018) (quoting South Carolina Dept. of Social Services v. Roe, 371 S.C.

450, 639 S.E.2d 165, 172 (2006) (emphasis omitted)).

      It is this Court’s obligation to ensure that a child’s rights are protected

along with the integrity of the proceeding. If we find that a conflict appears

to exist between the legal interests and best interests of the child, we may

sua sponte order a remand for such a determination by the trial court based

on the facts in the record. Likewise, if the record does not contain anything

to support whether a conflict exists or does not exist, the trial court must

receive evidence to support either position and render a decision.

      Here, the trial court’s order, dated January 8, 2018, appointed Mark

Hollenbeck, Esq., to represent both the legal and best interests of the children

in this case. Simply providing for a ten-day period to allow any of the parties

to object to this appointment without a factual basis in the record for the order

is insufficient. Did Attorney Hollenbeck interview the children and determine

whether any conflicts existed between their legal and best interests or from

one child to the other children, and had he reported such facts to the court?

Merely allowing an objection to be raised in response to the order is insufficient

because the right to counsel belongs to the children, not to a parent or an

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agency. Additionally, I would conclude that the trial court abused its discretion

by entering the order limiting to ten days the time in which the parties could

object to the appointment of the GAL. It is entirely possible that one or more

of the children could change their mind after the expiration of that period and

a conflict for the GAL would be present.

      Because I would conclude that this Court, in this case, may raise the

conflict issue sua sponte, I would remand this case for the trial court to

determine if any conflict exists and provide the basis for that determination.

Accordingly, I dissent.

      Judges Kunselman and McLaughlin join this dissenting opinion.




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