In the Interest of: N.J., a minor, Appeal of: B.J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF N.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.J. :
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:
:
:
: No. 191 WDA 2018
Appeal from the Order January 5, 2018
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-127-2017
BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.
CONCURRING STATEMENT BY DUBOW, J.: FILED NOVEMBER 30, 2018
Although I agree with the Majority Opinion that the decision in In re
Adoption of T.M.L.M., 184 A.3d 585 (Pa. Super. 2018), requires us to raise
sua sponte the issue of a conflict between a Guardian ad litem (“GAL”) and
Child Advocate, I write to express my disagreement with the legal analysis in
that case. The Superior Court panel in that case relied on a recent Supreme
Court case; that case, as well as a subsequent Supreme Court case, however,
did not address, let alone authorize, the Superior Court to raise the conflict
issue sua sponte.1
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1 When an appellate court raises an issue that the parties did not raise before
the trial court or the appellate court, the appellate court is raising the issue
“nostra sponte,” as opposed to “sua sponte” because the appellate court sits
in multi-judge panels. Black’s Law Dictionary (10th ed. 2014). For the sake of
convenience, however, we will use the term “sua sponte” because the cases
that address this issue for appellate courts consistently use this term.
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It is axiomatic that an appellate court may not raise an issue sua sponte,
except when the issue addresses the subject-matter jurisdiction of the court.
In re Angeles Roca First Judicial Dist. Philadelphia Cty., 173 A.3d 1176,
1197 (Pa. 2017) (“It is foundational that jurisdictional questions may be raised
sua sponte.”); Commonwealth v. Parker, 173 A.3d 294, 296 (Pa. Super.
2017) (“A court may consider the issue of jurisdiction sua sponte.”).
In fact, our Supreme Court has specifically prohibited the Superior and
Commonwealth Courts from deciding certain issues sua sponte. For instance,
the Superior Court cannot address constitutional issues sua sponte. See
Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975) (criticizing the Superior
Court’s sua sponte consideration of a constitutional issue, which “exceeded its
proper appellate function of deciding controversies presented to it.”).
Similarly, the intermediate appellate courts may not consider sua sponte
standing and recusal issues. See In re Nomination Petition of deYoung,
903 A.2d 1164, 1168 (Pa. 2006) (noting that our Supreme Court “has
consistently held that a court is prohibited from raising the issue of standing
sua sponte. Whether a party has standing to maintain an action is not a
jurisdictional question.”); Commonwealth v. Whitmore, 912 A.2d 827, 833
(Pa. 2006) (concluding that the Superior Court erred when it sua sponte
removed the trial judge where recusal had never been raised by the parties).
See also Fallaro v. Yeager, 528 A.2d 222, 228 (Pa. Super. 1987) (finding
that a court may not make a sua sponte determination of dependency in a
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custody action where no dependency petition has been filed or in an action
under the Child Protective Services Law).
The Supreme Court disfavors the intermediate appellate court’s
consideration of issues sua sponte because it is more important to respect
orderly judicial decision-making, afford counsel the opportunity to brief and
argue issues, permit the court to benefit from counsel’s advocacy, and uphold
issue preservation rules. Wiegand, supra.
There are, however, a few discrete, limited non-jurisdictional issues that
the Supreme Court has authorized the lower courts to raise sua sponte, such
as waiver as a result of various briefing defects. See, e.g., Commonwealth
v. Passaro, 476 A.2d 346, 348 (Pa. 1984) (describing Pennsylvania’s practice
of dismissing pending appeals of escaped prisoners, which the court may do
sua sponte); Berg v. Nationwide Mut. Ins. Co., Inc., 6 A.3d 1002, 1015
(Pa. 2010) (“failure to include issues in a Rule 1925(b) statement resulted in
‘automatic’ waiver, which could be found sua sponte by courts.”).
Similarly, the Superior Court has found that it has the authority to
consider sua sponte the failure of the trial court to conduct a Grazier hearing
to ensure that a defendant has knowingly and voluntarily waived his right to
counsel for his first PCRA petition. Commonwealth v. Stossel, 17 A.3d
1286, 1290 (Pa. Super. 2011). This Court based this conclusion on the fact
that the PCRA statute entitles an indigent defendant to counsel for his first
PCRA petition, and our Supreme Court has acknowledged that “PCRA relief
cannot stand unless the petitioner was afforded the assistance of counsel.”
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Id. (quoting from Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa.
1998)).
Although our Supreme Court has authorized the appellate courts to raise
sua sponte the issues above, it has not authorized Superior Court to raise sua
sponte the issue of whether a GAL representing a child in a termination
hearing has a conflict in such representation. The most recent Pennsylvania
Supreme Court cases addressing the trial court’s statutory obligation to
appoint legal counsel, as opposed to a GAL, for a child in a termination hearing
pursuant to 23 Pa.C.S. § 2313(a) do not involve situations in which Superior
Court raised the issue sua sponte.
In In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017), the parents
first raised the issue of a conflict with the trial court. Similarly, in In re T.S.,
192 A.3d 1080 (Pa. 2018), the parents raised the issue of a conflict for the
first time in Superior Court. Since the parents raised the conflict issue before
either the trial court or Superior Court, there was no reason for the Supreme
Court to address whether Superior Court can raise the conflict issue sua
sponte. Thus, at this point, the Supreme Court has not authorized Superior
Court to raise the conflict issue sua sponte.
With these principles in mind, I will address the reasons why I disagree
with the holding in T.M.L.M. The panel in this case relied upon In re K.J.H.,
180 A.3d 411 (Pa. Super. 2018), in which Superior Court raised sua sponte
the issue of whether the trial court violated Section 2313(a) by failing to
appoint any counsel for the Child in a termination hearing. Id. at 413. We
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reasoned that since the child had no counsel at the termination hearing and
Section 2313(a) requires the appointment of counsel, Superior Court should
raise the issue sua sponte in order to protect this statutorily mandated right
of the child. Id.
Despite the clear focus of In re K.J.H., a different panel of the Superior
Court expanded the court’s authority by interpreting Section 2313(a) to
require us to consider sua sponte whether a GAL has a conflict in a termination
case. T.M.L.M., 184 A.3d at 588. I disagree with this expansion of Superior
Court’s authority.
As an initial matter, the panel in T.M.L.M. relied upon the language of
Section 2313(a) that provides that “[t]he 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). The trial court stated on the record that the appointment of the GAL
for the termination hearing complied with L.B.M. and, thus, Section 2313(a).
T.M.L.M., 184 A.3d at 588. Although no party on appeal contested this finding
of the trial court, Superior Court sua sponte reviewed the record, reversed the
order terminating the mother’s parental rights, and remanded the case for
further proceedings. Id. at 590.
This analysis presumes that every GAL has a conflict and Superior Court
must delve into the record in every case to make sure that a GAL does not
have a conflict. Since a GAL, like any other lawyer, however, has a
professional responsibility to address a conflict of interest, there is no legal
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basis to treat a GAL differently from any other attorney and ensure that the
GAL does not have a conflict.2 See Rule of Professional Conduct 1.7.
Additionally, the cases upon which the T.M.L.M. panel relied are
distinguishable. It relied upon L.B.M., supra. However, as discussed above,
the Supreme Court in L.B.M. had no reason to address whether Superior Court
can address the conflict issue sua sponte. The Supreme Court merely
addressed whether the mandates of Section 2313(a) were met when a GAL
represented a child. L.B.M., 161 A.3d at 180.
The panel in T.M.L.M. also relied upon two other cases to support its
position that Superior Court can raise the conflict issue sua sponte: In re X.J.,
105 A.3d 1 (Pa. Super. 2014), and Stossel, supra. I find both of those cases
distinguishable.
In X.J., the Superior Court raised the issue of the trial court’s failure to
appoint counsel for the mother at the termination hearing in the context of
the filing by mother’s counsel of a Motion to Withdraw as Counsel and an
Anders3 brief averring that mother has no meritorious issues to raise on
appeal. When a lawyer files an Anders brief, the Superior Court is obligated,
first, to ensure that the lawyer has met certain requirements and, then, to
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2 As Superior Court judges, we occasionally observe in the record instances in
which counsel has not met all of its responsibilities, whether by waiving issues
or not understanding the law. That inadequacy alone is not a reason for
Superior Court to address sua sponte that lawyer’s actions or inactions and
then reverse the trial court.
3 Anders v. California, 386 U.S. 738 (1967).
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make an independent review of the trial court proceedings to determine
whether counsel has failed to raise any arguable claims on the merits.
Commonwealth v. Yorgey, 188 A.3d 1190 (Pa. Super. 2018). In other
words, the Superior Court is obligated to review the record and raise any
meritorious issues that counsel missed. We are not, however, authorized to
decide such issues.
In Stossel, supra, the trial court had appointed no counsel for the
defendant for his first PCRA petition. Pa.R.Crim.P. 904(C) requires the
appointment of counsel for a first PCRA petition. As noted above, because the
right to counsel on a first PCRA is mandated, this Court is required to raise
the issue sua sponte. T.M.L.M is distinguishable because the trial court had
appointed a GAL and thus, the trial court had followed the mandates of Section
2313(a).
In conclusion, there is no legal authority that permits the Superior Court
to raise sua sponte a non-jurisdictional issue, i.e., the issue of whether the
GAL already representing the Child has a conflict. If the Supreme Court has
prohibited us from deciding sua sponte constitutional issues and issues
involving standing and the recusal of a trial court judge, we should not,
without approval from the Supreme Court, extend our authority to cases in
which the child is already represented by a GAL who has a professional
responsibility to address a conflict. It would, thus, be helpful for the
Pennsylvania Supreme Court to provide us with guidance in this area.
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