As attorneys who represented amici in the recent Pennsylvania Supreme Court case In re L.B.M., we write to respond to the June 26, public interest column describing the Pennsylvania Supreme Court’s decision in that case, (“Providing a Voice for the Child in Court”). With respect for our colleagues at the Support Center for Child Advocates, we believe that this column understates both the breadth and the clarity of the court’s holding in that case.
In re L.B.M. is a landmark opinion establishing definitively that when a child’s right to a lifelong relationship with her family might be severed in a contested termination of parental rights hearing, she is entitled to a client-directed attorney who fulfills the traditional role of counsel and advocates for her wishes before the court. The Supreme Court, in its “main opinion” joined by five of the seven justices, held it 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.” The main opinion further held that failure to appoint legal counsel for a child warrants automatic reversal of a termination of parental rights decree. None of these holdings was limited to the facts of the case.
The opinion creates no ambiguity in the meaning of the term legal interests. In fact, the court itself resolves any ambiguity in the term by stating that legal interests “are synonymous with the child’s preferred outcome.” The court further cites to a comment to the Rules of Juvenile Court Procedure, which explains that legal interests representation requires the child’s attorney “to express the child’s wishes to the court regardless of whether the attorney agrees with the child’s recommendation.”
This holding—an important victory for Pennsylvania’s children—reflects a growing national consensus that the wishes of children must be front and center when courts are making vital decisions about their lives. Indeed, the American Bar Association’s Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings provides that all children should be entitled to client-directed representation in child welfare proceedings.
The voice of a child is especially crucial in a termination of parental rights proceeding. For a child, termination of parental rights means the irrevocable severance of her ties not only to her parents, but also to her extended family members and potentially her siblings. While a child’s opinion will not be controlling in every instance, the gravity of the rights at stake mean that the child must be heard and must have her wishes zealously advocated to the court. Further, the advocacy provided by a child’s legal counsel offers the trial court a fuller understanding of the child and the effect that termination of parental rights might have. As the L.B.M. main opinion wisely noted, the appointment of client-directed counsel “optimizes the protection of the child’s needs and welfare.”
Despite the broad agreement among the justices on the right to client-directed counsel, trial courts will be responsible for protecting this right, particularly ensuring there is no conflict of interest when the child was represented in dependency proceedings by an attorney serving in a dual capacity as guardian ad litem (representing the child’s best interests) and legal counsel (representing the child’s expressed interests) and such attorney is proposed to represent the child in the termination of parental rights
It is clear, however, that “the primacy of children’s welfare, the fundamental nature of the parent-child relationship and the permanency of termination” mean that in Pennsylvania, every child in a contested termination of parental rights hearing must have their wishes advocated by legal counsel.
Susan Vivian Mangold, executive director, Juvenile Law Center; Samuel W. Milkes, executive director, Pennsylvania Legal Aid Network; Kevin Quisenberry, Community Justice Project and Witold J. Walczak, legal director, ACLU of Pennsylvania contributed to this article.•