In the Interest of: S.U., a Minor ( 2019 )

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2019 Pa. Super. 48
IN THE INTEREST OF: S.U., A MINOR IN THE SUPERIOR COURT
OF PENNSYLVANIA
APPEAL OF: R.U., FATHER
No. 888 MDA 2017
Appeal from the Orders Entered May 4, 2017
In the Court of Common Pleas of Lancaster County
Juvenile Division at No: CP-36-DP-0000083-2017
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, SHOGAN, LAZARUS,
STABILE, and DUBOW, NICHOLS, and McLAUGHLIN, JJ.
DISSENTING OPINION BY STABILE, J.: FILED FEBRUARY 21, 2019
Presently at issue is a parent’s statutory right to counsel in a
dependency proceeding. Because I believe the trial court failed to enforce
that right according to its plain statutory terms, I respectfully dissent.
On April 12, 2017, the trial court entered an order appointing counsel
to represent Appellant, R.U. (“Father”), at a shelter care hearing. An attached
notice informed Father that appointed counsel would represent him at the
shelter care hearing only, and provided Father an address and telephone
number he could use to seek further legal representation. The April 12, 2017
order indicates that it was served on Father and Father’s appointed counsel.
Counsel appeared at the April 18, 2017 shelter care hearing, but Father did
not. Counsel then successfully moved for withdrawal but did not inform
Father. At oral argument before this Court, counsel represented that she
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believed the Lancaster County Children and Youth Social Service Agency would
notify Father of her withdrawal. The May 1, 2017 shelter care order notified
Father that his counsel had withdrawn and directed Father to make an
appointment at the Office of Bail Administration if he wished to have counsel
at the next scheduled hearing. Father could not have made any such
appointment, because the next scheduled hearing took place the following
morning, at 8:30 a.m. on May 2, 2017. Father failed to attend the May 2,
2017 hearing,1 no counsel appeared on Father’s behalf, and the trial court
entered the orders presently on appeal. In these circumstances, I would
conclude that the trial court failed to enforce Father’s statutory right to
counsel.2
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1 The record reflects that caseworker Courtney Ross spoke to Father on the
evening of May 1, 2017 about the hearing the following morning. N.T. 5/2/17,
at 9-10. She stated that both parents told her they would attend and arrive
early to speak further with Ross about the case. Id. The Majority, at footnote
11, writes that Ross notified Father of the hearing. Majority Opinion at 17
n.11. The Majority’s footnote is deceptive insofar as it fails to note that the
meeting between Ross and Father took place the night before the hearing.
More to the point, Ross did not state whether she spoke to Father about his
counsel’s withdrawal. The record does not establish that Father was aware of
counsel’s withdrawal any earlier than May 1, 2017, assuming he read the
court’s notice.
2 We may raise this issue sua sponte. See In re X.J., 105 A.3d 1, 4 (Pa.
Super. 2014) (holding that, in a termination case, “when a party was denied
[his] right to counsel—or failed to properly waive that right—this Court is
required to raise this error sua sponte”). Additionally, we note that the same
attorney who withdrew earlier in these proceedings now represents Father on
appeal. Thus, there was no attorney representing Father who could have
challenged the propriety of counsel’s earlier withdrawal from the case. See
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I believe the plain language of 42 Pa.C.S.A. § 6337, read in conjunction
with the applicable procedural rules,3 is dispositive. “When the words of a
statute are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).
The purpose of statutory interpretation is to ascertain the
General Assembly’s intent and give it effect. In discerning that
intent, the court first resorts to the language of the statute itself.
If the language of the statute clearly and unambiguously sets forth
the legislative intent, it is the duty of the court to apply that intent
to the case at hand and not look beyond the statutory language
to ascertain its meaning. Relatedly, it is well established that
resort to the rules of statutory construction is to be made only
when there is an ambiguity in the provision.
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In re T.S., 192 A.3d 1080, 1087 (Pa. 2018) (finding no waiver of a statutory
right to counsel issue where there was no attorney who could have raised the
issue, and the children could not have done so themselves).
3 Rule 1151(E) of the Rules of Juvenile Court Procedure provides:
E. Counsel for other parties. If counsel does not enter an
appearance for a party, the court shall inform the party of the
right to counsel prior to any proceeding. If counsel is requested
by a party in any case, the court shall assign counsel for the party
if the party is without financial resources or otherwise unable to
employ counsel. Counsel shall be appointed prior to the first court
proceeding.
Pa.R.J.C.P. 1151(E). The Comment to Rule 1151 provides that “it is extremely
important that every ‘guardian’ has an attorney.” Pa.R.J.C.P. 1151, comment.
Rule 1152 provides that a parent’s waiver of the right to counsel must be
knowing, intelligent, and voluntary, and may occur only after an on-the-record
colloquy. Pa.R.J.C.P. 1152(B).
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In re Adoption of L.B.M., 161 A.3d 172, 179 (Pa. 2017) (internal citations
and quotation marks omitted).
The first sentence of Section 63374 gives a party a statutory right to
counsel at all stages of a dependency proceeding. That right is not conditioned
on a party’s request or a party’s appearance at a proceeding. The second
sentence of Section 6337 requires the court to ascertain whether a parent who
appears at a proceeding unrepresented is aware of the right to counsel. It
does not, either expressly or impliedly, require a parent to appear at a
proceeding before the right to counsel attaches. Section 6337 is silent on the
effect of a party’s failure to appear at a proceeding.
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4 Section 6337 provides:
Except as provided under this section and in section 6311
(relating to guardian ad litem for child in court proceedings), a
party is entitled to representation by legal counsel at all stages of
any proceedings under this chapter and if he is without financial
resources or otherwise unable to employ counsel, to have the
court provide counsel for him. If a party other than a child
appears at a hearing without counsel the court shall ascertain
whether he knows of his right thereto and to be provided with
counsel by the court if applicable. The court may continue the
proceeding to enable a party to obtain counsel. Except as
provided under section 6337.1 (relating to right to counsel for
children in dependency and delinquency proceedings), counsel
must be provided for a child. If the interests of two or more
parties may conflict, separate counsel shall be provided for each
of them.
42 Pa.C.S.A. § 6337.
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Rule 1151(E) governs the trial court’s obligations when no counsel
enters an appearance for a party, or when an unrepresented party requests
counsel. Neither scenario occurred here. Rather, appointed counsel entered
an appearance on Father’s behalf prior to the first proceeding. The Majority’s
reliance on and analysis of Rule 1151(E) is therefore misplaced. Rule 1151(E),
like Section 6337, is silent on the effect of a parent’s failure to appear or
request counsel. All three sentences of Rule 1151(E) state what the court
“shall” do. See, e.g., L.B.M., 161 A.3d at 179 (noting that the use of “shall”
in 23 Pa.C.S.A. § 2313(a) of the Domestic Code was an unambiguous
mandate). Rule 1151(E) imposes obligations on the court, not a party.
The real issue in this case is the propriety and the procedure regarding
counsel’s withdrawal after only one proceeding. Rule 1152, governing waiver
of the right to counsel, does not state that a parent’s failure to appear at a
proceeding or procure counsel for a subsequent proceeding, in accordance
with the instructions of a preprinted document, constitutes a knowing,
intentional, and voluntary waiver of the right to counsel. Rather, the official
comment to Rule 1152 recommends inquiry into whether (1) the party
understands the right to counsel; (2) whether the party understands the
dependency allegations; (3) whether the party is aware of the potential
outcomes of a dependency proceeding; (4) whether the party understands
that he or she must obey the rules of procedure regardless of the presence or
absence of counsel; (5) whether the party understands that counsel may be
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better suited to defend the party against the allegations; and (6) whether the
party understands the potential to waive rights and objections. Pa.R.J.C.P.
1152, comment. I understand that the official comment to a Rule is
nonbinding, but I find it very problematic that Father’s failure to comply with
the trial court’s notices provides no answers to any of these six questions.5
Because Rule 1152 imposes an affirmative obligation on the court to
determine whether a parent’s waiver of counsel is knowing, intelligent, and
voluntary, it is clear that no valid waiver of counsel occurred in this case.
In summary, the trial court failed to enforce Father’s statutory right to
counsel according to the plain statutory terms, and failed to conduct a valid
waiver colloquy. Instead, the trial court elevated local practice over statutory
law. This Court must not condone local practices that subvert statutory rights.
Furthermore, I disagree with the Majority’s prompt resolution analysis.
Majority Opinion at 18 (citing 42 Pa.C.S.A. § 6351(e)(3), Pa.R.J.C.P. 1404(A),
1409(B), and 1510). Proper enforcement of Father’s right to counsel would
not have delayed this proceeding. Had Father’s appointed counsel remained
on the case she could have represented Father’s interests at the May 2, 2017
hearing, regardless of his presence or absence. In the meantime, the court
could have instructed counsel to attempt to contact Father, and act
accordingly in response to counsel’s report on Father. This would have
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5 As I noted above, there is no indication that Father could have known of his
counsel’s withdrawal prior to the May 1, 2017 notice.
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protected Father’s statutory right to counsel with no attendant delay. If
appropriate, the trial court could have issued orders identical to those on
appeal at the conclusion of the May 2, 2017 hearing with or without Father’s
participation. Again, the real issue, insofar as Father’s right to counsel is
concerned, is the trial court’s lack of statutory authority to permit counsel’s
withdrawal on the facts before us. The Majority’s conclusion that the trial
court would have had to await Father’s action apparently rests on its
misreading of Rule 1151(E). As I explained above, that Rule imposes
obligations on the trial court, not a party, and it does not govern here because
counsel was appointed and entered an appearance prior to the first
proceeding.
Finally, I note that the United States Supreme Court has recognized that
“[t]he fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not
been model parents or have lost temporary custody of their child to the State.”
Santosky v. Kramer, 455 U.S. 745, 753 (1982).
Even when blood relationships are strained, parents retain
a vital interest in preventing the irretrievable destruction of their
family life. If anything, persons faced with forced dissolution of
their parental rights have a more critical need for procedural
protections than do those resisting state intervention into ongoing
family affairs. When the State moves to destroy weakened
familial bonds, it must provide the parents with fundamentally fair
procedures.
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Id. at 753–54.6
Likewise, the Pennsylvania Supreme Court has recognized the
paramount importance of the right to counsel where family unity is at stake.
In L.B.M., the Court recognized that a child has a right, in a contested
termination of parental rights proceeding, to have counsel to advocate for the
child’s legal interests, which can be distinct from a guardian’s assessment of
the child’s best interests. L.B.M., 161 A.3d at 180. Notably, the L.B.M. Court
recognized the importance of enforcing the clear language of a statutory right
to counsel despite the associated costs and delays. Id. at 181; see also In
re T.S., 192 A.3d 1080 (Pa. 2018) (holding that the same person can
represent the child’s legal and best interests where there is no divergence
between the two).
I recognize that this is not a termination proceeding, and that the stakes
in a termination proceeding are much more serious than those of a
dependency proceeding. See T.S., 192 A.3d at 1095 (Donohue, J. concurring
and dissenting). Nonetheless, the outcome here—changing S.U.’s
permanency goal to adoption, terminating Father’s visitation, and ceasing all
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6 While my conclusion does not rest on fundamental fairness, I cannot
conceive of any grounds on which the trial court’s May 1, 2017 notice—
informing Father for the first time of prior counsel’s withdrawal and advising
him of the need to procure new counsel by 8:30 a.m. the following
morning—could be considered fundamentally fair.
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reunification efforts—creates potentially insurmountable obstacles to Father’s
efforts to avoid termination of his parental rights.
It is inescapable that Section 6337, in tandem with Rules 1151(E) and
1152, creates a right to counsel for all stages of a dependency proceeding.
Rule 1152 governs waiver of that right. L.B.M. and T.S., as well as the rules
of statutory construction, teach that we must enforce a statutory right to
counsel according to its terms. Because the law did not authorize the trial
court to permit counsel to withdraw under the circumstances here present,
and because Father did not waive his right to counsel, I would vacate the trial
court’s orders and remand for further proceedings.
I respectfully dissent.
Judge Shogan joins the dissenting opinion.
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