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While a Pennsylvania Supreme Court decision in an ­individual’s area of practice is always ­exciting, for child welfare attorneys, the momentous nature is heightened because decisions are infrequent. Child welfare ­attorneys are attorneys who, in Philadelphia and across the commonwealth, represent county children and youth agencies (e.g., Philadelphia’s Department of Human Services), parents, or children in Juvenile Act hearings, known as dependency ­proceedings, see 42 Pa.C.S.A. Section 6301 et seq., and in termination of parental rights (TPR) cases under the Adoption Act. (See 23 Pa.C.S.A. Section 2313(a).) The Pennsylvania Supreme Court’s recent companion decisions in In re Adoption of: L.B.M., a Minor and A.D.M., a Minor, are noteworthy for child welfare attorneys not only for their substance, but for the court’s sua sponte revision of its original opinions, Nos. 84 and 85 MAP 2016 (Pa. March 28) (revised May 23).

On May 23, in a plurality and revised opinion, the Pennsylvania Supreme Court (Justice David Wecht, joined by Justices Christine Donohue and Kevin Dougherty), addressed the interrelationship of ­provisions of the Juvenile Act and the Adoption Act. In dependency proceedings, where care of the child is an issue, the Juvenile Act requires that the court “appoint a guardian ad litem [GAL] to represent the legal interests and the best interests of the child.” The Adoption Act requires the court to ­”appoint counsel to represent the child in an ­involuntary termination proceeding when the proceeding is being contested” by a parent.

The court interpreted Section 2313(a) as mandating the appointment of counsel who serves the child’s “legal interests” which includes expression of the child’s wishes, as distinguished from what the GAL ­believes is best for the child’s care and well-being. The original opinion concluded that the dependency GAL did not satisfy the Adoption Act attorney requirement, and thus, “Section 2313(a) requires the trial court to appoint a separate, independent ­attorney to represent the child’s legal ­interests in a TPR case.” The revised ­opinion omitted the mandatory second-attorney language, and now holds that a second attorney for the minor should have been appointed “under the facts of the ­present case.”

Given this revision, it is important to examine the underlying facts. In July 2013, the mother of then 2-year-old L.B.M. and his 6-year-old brother A.D.M. ­contacted Franklin County Children and Youth Services requesting placement because she was about to be homeless; the father of the children was incarcerated. A GAL was appointed to represent the children for ­dependency proceedings. Subsequently, the mother was incarcerated for drug charges and probation violations at least four times over the next year. During this time, the children visited with their mother.

In August 2014, after 13 months of court involvement, a TPR petition was filed. On Nov. 25, 2014, the lower court ­denied the TPR petition finding that the mother was out of prison, obtained housing and ­employment, attended most of her ­visits with the children, and bonded with the children. The court expressed “grave ­concerns” about the impact of termination finding A.D.M. was “extremely close” with his mother who testified he “desperately wanted to be with his mother.” The mother was ­subsequently incarcerated for ­violating probation then tested positive for drugs resulting in suspension of her prison ­visitation with the children.

In August 2015, the GAL filed a ­second TPR petition. The mother’s attorney ­requested appointment of counsel for the children, asserting that the GAL’s position “may be adverse to the children’s position.” The trial court denied the motion finding Section 2313(a) of the Adoption Act “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 child.” The trial court concluded that the GAL’s representation in the TPR case would best suit the children’s interests.

The Superior Court affirmed, holding that a GAL attorney ­appointed to represent a child in prior dependency proceedings satisfies the requirements of Section 2313(a) to appoint counsel to represent the child in a contested TPR proceeding. The revised Supreme Court opinion reversed, mandating the trial court to make a separate finding whether the ­dependency proceeding GAL is also ­capable of representing the child’s legal interests in a TPR proceeding. If not, the trial court must appoint a separate ­client-directed ­attorney to represent what the child wants.

The Supreme Court decision is a ­plurality, with multiple opinions. Wecht prefers appointment of separate, client-directed counsel, declaring “practical concerns militate against such a dual service for the GAL.” Yet Wecht acknowledged “that providing a new attorney as counsel for the child carries a cost” including “appointed counsel’s fee;” “delays while counsel prepares for the TPR proceedings and interviews the child and any other parties or witnesses;” potential conflicts in representing siblings; and “in some cases, the child may be too young to express his or her wishes.”

The dissenting (Justices Sallie Mundy and Max Baer) and concurring (Chief Justice Thomas Saylor joined by Justice Debra Todd) justices disagreed with Wecht’s ­interpretation of Section 2313(a), and instead agreed that the same GAL attorney is capable of representing the child’s legal and best interests in contested TPR ­proceedings. Mundy aptly noted, “such dual representation is both unnecessary and ­taxing to the system, and undermines continuity of representation for the children.” Mundy also pointed out “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.”

Baer ­dissenting, joined by Mundy, articulated that the trial court record did not support the mother’s assertion that a conflict of interest ­existed between A.D.M.’s legal and best interests “which would have required the GAL to move for the appointment of separate counsel.” Moreover, Baer, citing Pa.R.P.C. 1.7, explained “if a conflict of interest exists between the child’s best and legal interests, the GAL attorney, who is subject to the Rules of Professional Conduct, must move for the appointment of a separate individual to allow separate representation of the best interests and legal interests.”

Finally, Saylor concurring, joined by Todd, also “disagreed with Wecht’s conclusion that a guardian ad litem may never serve as counsel, as … such a rigid rule is not required by either the language of the statute or any other considerations relating to counsel’s role in legal proceedings.” Saylor, joined by Todd, and in accord with Mundy and Baer, concluded that “in the absence of an actual or potential conflict between a child’s legal and best interests, I see no reason why a guardian ad litem may not also serve as counsel.”

Thus, a majority four justices agree the GAL can serve the dual role of representing both the legal and best interests of a minor in TPR proceedings if there is no conflict and do not agree with Wecht’s interpretation that appointment of a second attorney is always required pursuant to 23 Pa.C.S.A. Section 2313(a).

So, what does this mean going forward for courts and child welfare attorneys? Do children deserve a voice in proceedings that affect their lives? Of course. Is it preferable that this voice be provided by an individual who has cultivated a trusting client-relationship with them, or must it be someone new, yet another person on the merry-go-around of individuals who come into the lives of children in foster care, never to be seen again? More importantly, should a TPR proceeding be decided only on what the child wants, or should that be one factor, among other best interest evidence presented to the court? Are expressed wishes and legal interests one and the same, or are rights to permanency and safety “legal interests” regardless of the child’s wishes? What about the child who is being pressured by mom or dad to say something out of loyalty, and thus, his ­”client ­direction” is not truly what they want? And what exactly is client direction from a nonverbal 18-month-old; is not this, in fact, an analysis and presentation of best interest evidence for which a GAL is uniquely 
suited?

The consequences of this decision may be far-reaching, although the qualification that the holding applies to the facts of this case may diminish this. Absent a conflict of interest, the dependency GAL should continue to advocate vigorously for the child-client, providing a voice to the child in court, one steeped in history, knowledge and familiarity with both the child and the case.