                   [J-119A-2016 and J-119B-2016] [MO: Wecht, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


IN RE: ADOPTION OF: L.B.M., A MINOR          :   No. 84 MAP 2016
                                             :
                                             :   Appeal from the Order of the Superior
APPEAL OF: J.P., MOTHER                      :   Court at 1834 MDA 2015 dated May 31,
                                             :   2016 Affirming the Order of the Court of
                                             :   Common Pleas of Franklin County,
                                             :   Orphans’ Court Division, at 42-ADOPT-
                                             :   2014 dated September 25, 2015.
                                             :
                                             :   ARGUED: December 6, 2016

IN RE: ADOPTION OF: A.D.M., A MINOR          :   No. 85 MAP 2016
                                             :
                                             :   Appeal from the Order of the Superior
APPEAL OF: J.P., MOTHER                      :   Court at 1835 MDA 2015 dated May 31,
                                             :   2016 Affirming the order of the Court of
                                             :   Common Pleas of Franklin County,
                                             :   Orphans’ Court Division, at 41-ADOPT-
                                             :   2014 dated September 25, 2015.
                                             :
                                             :   ARGUED: December 6, 2016


                                DISSENTING OPINION


JUSTICE MUNDY                                          DECIDED: March 28, 2017
      I agree with the majority’s conclusion that pursuant to 23 Pa.C.S. § 2313(a),

appointment of counsel is mandatory for children involved in contested involuntary

termination of parental rights proceedings. However, because I believe an attorney

guardian ad litem (GAL) appointed to represent a child in these proceedings satisfies

Section 2313(a)’s mandate, I dissent.

      As the majority states, this case presents an issue of statutory interpretation and

is governed by the relevant legal standards set forth in the majority’s opinion. Majority
Op., at 10-11.     Further, it is undisputed that the mandatory language of the first

sentence of Section 2313(a) requires appointment of counsel in contested involuntary

termination proceedings.
                                  § 2313. Representation
               (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) (emphasis added).

        In my view, the first and second sentences of Section 2313(a) address two

entirely different situations. As the text of the statute states, the second sentence of

Section 2313(a) provides that the court may appoint counsel or a GAL in “any other

proceeding” under “this part,” this part meaning, the Adoption Act, 23 Pa.C.S. §§ 2101-

2938.     The Adoption Act encompasses voluntary relinquishment proceedings,

involuntary termination proceedings - contested and uncontested, as well as adoption

proceedings.     Thus, Section 2313(a) governs representation under all Adoption Act

proceedings, and the second sentence of Section 2313(a) has no effect on the meaning

of the first sentence, stating counsel shall be appointed to represent a child in a

contested involuntary termination proceeding.

        The majority notes that the “trial court chose simply to skip over the first sentence

of Section 2313(a) (which mandates counsel in contested [termination of parental rights]

cases) in favor of that provision’s second sentence which ‘gives this Court the discretion

to appoint counsel or a GAL to represent any child who has not reached 18 years and is

subject to any other proceeding under this part whenever it is in the best interests of the



                   [J-119A-2016 and J-119B-2016] [MO: Wecht, J.] - 2
child.’”     Majority Op., at 6, quoting Trial Court Order, 9/9/15.       Conflating the two

sentences, the trial court relied on the second sentence of Section 2313(a) in support of

its appointment of the GAL attorney. Nevertheless, as the trial court noted in denying

Mother’s motion for appointment of new counsel, the children had an established

relationship with the GAL attorney, and her continued representation would best suit the

needs of the children. Id. In light of the statutory interpretation discussion above, I fail

to see how this contested involuntary termination proceeding is “any other proceeding,”

or how the GAL attorney appointed to represent the children is not “mandated counsel”

in accordance with the first sentence. Thus, the trial court’s continued appointment of

the GAL attorney from the dependency case satisfied Section 2313(a)’s mandate.

           I believe that the majority is mistakenly reading the first and second sentences in

conjunction with each other, which has the effect of changing the meaning of the first

sentence. The General Assembly chose in the second sentence to say “counsel or a

[GAL],” noting in the comment that the GAL need not be an attorney. Thus, in all “other

proceedings” under the Adoption Act, the General Assembly contemplated the

possibility that a child might not be represented by counsel at all.         Contrary to the

majority’s suggestion, the inclusion of an option to solely appoint a non-attorney GAL in

other proceedings does not necessarily render the appointment of a GAL attorney a

violation of the Section 2313(a)’s appointment of counsel clause. Our review in this

case is limited to whether appointment of a GAL attorney satisfies Section 2313(a)’s

mandate that counsel be appointed in contested involuntary termination of parental

rights proceedings. I conclude it does.

           I also am troubled by the majority’s conclusion that “[t]he plain language of

Section 2313(a) requires the trial court to appoint a separate, independent attorney to

represent a child’s legal interests in a [termination of parental rights] case.” Majority




                      [J-119A-2016 and J-119B-2016] [MO: Wecht, J.] - 3
Op. at 1 (emphasis added). The majority adopts the position that Section 2313(a)

specified that appointed counsel would solely be representing the child’s legal interests,

and not best interests, without citation to where the term “legal” was added to Section

2313(a). I do not disagree with the majority’s citation to Pennsylvania Rules of Juvenile

Court regarding the role of a GAL attorney in dependency hearings, or the distinct legal

and best interests which they must represent. See Majority Op. at 2, citing Pa.R.J.C.P.

1154. However, even in the dependency context, Rule 1154 specifically anticipates the

potential for a conflict between a child’s wishes - the child’s legal interest, and a child’s

best interests, and that in such a case separate legal counsel in addition to the GAL

attorney may be appointed. Pa.R.J.C.P. 1154 cmt.1 This does not necessitate that a

GAL attorney can only advocate a child’s best interest, or that the General Assembly

intended to preclude a GAL attorney from representing a child under Section 2313. Nor

does it mandate two attorneys must be appointed in the absence of a conflict of interest

on the part of the GAL attorney.        The statute as drafted solely provides that “the court

shall appoint counsel.”    23 Pa.C.S. 2313(a).         The appointment of a GAL attorney

certainly satisfies this requirement.

       Further, as the majority concedes, Section 2313(a) is the only requirement the

General Assembly imposed, and “no other statutory provision speaks to the

appointment of counsel or a GAL in an involuntary termination of parental rights

proceeding.” Majority Op. at 3. The majority correctly notes that in custody cases when

counsel is appointed, counsel “shall represent the child’s legal interests and zealously

represent the child as any other client in an attorney-client relationship[, and] . . . shall

not perform the role of guardian ad litem or best interests attorney.”             Pa.R.C.P.

1
   The comment to Rule 1154 notes “[i]f there is not a conflict of interest, the guardian ad
litem represents the legal and best interests of the child[.]” Pa.R.J.C.P. 1154 cmt.



                   [J-119A-2016 and J-119B-2016] [MO: Wecht, J.] - 4
1915.11(a). And that on the contrary, in dependency cases, a GAL attorney “shall be

charged with representation of the legal interests and the best interests of the child at

every stage of the proceedings.” 42 Pa.C.S. § 6311(b). The first sentence of Section

2313(a) does not differentiate between representing the child’s best interests or legal

interests in mandating the appointment of counsel in contested termination of parental

rights cases.2 It is not the duty or role of this Court to inject such differentiation into

Section 2313(a) that is not derived from the statutory language.

      In support of its position that a Section 2313(a) attorney should only represent

the child’s legal interests, the majority quotes In re Adoption of Hess, 562 A.2d 1375

(Pa. Super. 1989) for the proposition that “[t]he purpose of 2313(a) is to ensure that the

needs and welfare of a child will be actively advanced by an advocate who owes loyalty

only to the child.” Majority Op. at 11, n. 11, quoting id. at 1381 (emphasis in original).

The next sentence of Hess, however, makes clear that although the court’s intent was

to appoint counsel that owed a loyalty to the child, it did not intend to limit counsel to

advocate solely for the child’s legal interests.        Indeed, the court was very much

concerned with the child’s best interests and stated,

             Where, as in the present case, there are competing
             allegations of the best interests of the child, and where the
             court, without conducting a hearing by which it could receive
             evidence so that it could make a fully informed determination
             of the BEST interests of the child, summarily dispenses with
             one of the competing allegations of the child's best interests,
             and where no counsel has been appointed to represent
             exclusively the child's interests, we cannot conclude that the
             BEST interests of the child have necessarily been advocated
             and determined.
Hess, 562 at 1381(emphasis in original).

2
  I maintain the second sentence does not pertain to contested involuntary termination
of parental rights proceedings.



                  [J-119A-2016 and J-119B-2016] [MO: Wecht, J.] - 5
       The majority also disapproves of the Superior Court’s reliance on In re K.M., 53

A.3d 781 (Pa. Super. 2012), overruling the pertinent holding in that case. Therein, the

Superior Court concluded the language of Section 2313(a) was not clear and

unambiguous as applied to circumstances where the GAL was an appointed attorney.

Majority Op., at 8. Like the majority in this case, the K.M. court also focused on the

meaning of the second sentence of the statute in relation to the first sentence, but

nevertheless concluded that the statute did not preclude a GAL attorney from serving as

legal counsel for the children. Upon reflection, I believe K.M.’s focus on the second

sentence was unnecessary. Ultimately, however, the outcome of K.M. was correct as

the appointment of a second attorney when the child was represented by a GAL

attorney would be superfluous.

       Based on my conclusions regarding the statutory interpretation of Section 2313,

it is unnecessary to further elaborate on the ability of a GAL attorney to represent a child

in a contested termination of parental rights matter. Nevertheless, there are two points I

wish to make.    First, as noted, the appointment of additional counsel following the

appointment of a GAL attorney is superfluous.          In this matter the GAL attorney

represented the children’s interests throughout dependency proceedings. Under the

majority’s interpretation, in addition to the GAL attorney, it would have been necessary

to appoint an attorney for the first termination hearing when CYS petitioned to

involuntarily terminate the parental rights of both Mother and Father.3 At that hearing,

Father’s rights were involuntarily terminated, but Mother’s rights were not. Once the

petition to involuntarily terminate Mother’s rights was denied, the Section 2313(a)

appointed legal counsel would no longer be involved in the matter, and the GAL

3
 As noted by the majority, at this hearing the GAL attorney represented the children
and neither party objected.



                   [J-119A-2016 and J-119B-2016] [MO: Wecht, J.] - 6
attorney would resume her sole advocacy on behalf of the children during the

permanency proceedings. At the commencement of the second termination hearing, it

would again be necessary to appoint Section 2313 legal counsel, possibly the same

attorney that represented the children at the first termination hearing, perhaps a new

attorney. This legal counsel would represent the children alongside the GAL attorney

throughout the termination hearing.     It is my view such dual representation is both

unnecessary and taxing to the system, and undermines continuity of representation for

the children.

       Second, the only concern articulated by the majority regarding the appointment

of a GAL attorney appears to be a conflict of interest between advocating the child’s

best interests and legal interests simultaneously. Majority Op. at 10. As previously

noted, the GAL attorney must do this in the dependency actions, and Rule 1154

provides a procedure for appointing separate legal counsel from the GAL attorney if a

conflict of interest between the child’s wishes and best interests arise. I see no basis for

concluding that a GAL attorney would be incapable of being held to the same standard

in contested involuntary termination of parental rights cases. Further, in cases involving

young children or children with limited capacity, the child may be unable to express a

separate legal interest to an independent attorney appointed in addition to the GAL

attorney, but would nevertheless be required to have one appointed under the majority’s

interpretation. Therefore, I disagree with the majority’s holding that the GAL attorney

cannot represent the child in a contested termination hearing.

       In conclusion, by writing separately I am in no way discounting the importance of

the child’s interests or diminishing the mandate of Section 2313(a)’s requirement of

appointment of counsel. A contested involuntary termination hearing is a proceeding

with the highest level of finality, and no child should proceed into one absent




                   [J-119A-2016 and J-119B-2016] [MO: Wecht, J.] - 7
representation by an attorney. I write separately because I believe appointment of a

GAL attorney satisfies the mandates of Section 2313(a) and ensures the needs and

welfare of the child will be adequately advanced. In my opinion, a remand for the

appointment of a second attorney in this matter, when a GAL attorney already

represented the children in accordance with Section 2313(a), is unnecessary.

Accordingly, I dissent.

       Justice Baer joins this dissenting opinion.




                   [J-119A-2016 and J-119B-2016] [MO: Wecht, J.] - 8
