Adoption of J.C.C. Apl of: T.L.G.

[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN RE: ADOPTION OF K.M.G. : No. 55 WAP 2019
:
: Appeal from the Order of the
APPEAL OF: T.L.G., MOTHER : Superior Court entered September
: 13, 2019 at No. 580 WDA 2018,
: affirming the Decree entered March
: 5, 2018 in the Court of Common
: Pleas of McKean County at No. 42-
: 17-0239.
:
: SUBMITTED: April 16, 2020
IN RE: ADOPTION OF: A.M.G. : No. 56 WAP 2019
:
: Appeal from the Order of the
APPEAL OF: T.L.G., MOTHER : Superior Court entered September
: 13, 2019 at No. 581 WDA 2018,
: affirming the Decree entered March
: 5, 2018 in the Court of Common
: Pleas of McKean County at No. 42-
: 17-0240.
:
: SUBMITTED: April 16, 2020
IN RE: ADOPTION OF S.A.G. : No. 57 WAP 2019
:
: Appeal from the Order of the
APPEAL OF: T.L.G., MOTHER : Superior Court entered September
: 13, 2019 at No. 582 WDA 2018,
: affirming the Decree entered March
: 5, 2018 in the Court of Common
: Pleas of McKean County at No. 42-
: 17-0241.
:
: SUBMITTED: April 16, 2020
IN RE: ADOPTION OF J.C.C. : No. 58 WAP 2019
:
: Appeal from the Order of the
APPEAL OF: T.L.G., MOTHER : Superior Court entered September
: 13, 2019 at No. 583 WDA 2018,
: affirming the Decree entered March
: 5, 2018 in the Court of Common
: Pleas of McKean County at No. 42-
: 17-0242.
:
: SUBMITTED: April 16, 2020
OPINION
JUSTICE BAER DECIDED: NOVEMBER 10, 2020
For the third time in four years, we address the appointment of counsel to represent
children in contested termination of parental rights proceedings pursuant to Section
2313(a) of the Adoption Act, 23 Pa.C.S. § 2313(a).1 As we have previously recognized,
“Section 2313(a) requires that the common pleas court appoint an attorney to represent
the child’s legal interest, i.e. the child’s preferred outcome,” and the failure to appoint
counsel constitutes structural error in the termination proceedings. In re T.S., 192 A.3d
1080, 1082 (Pa. 2018). We reiterate that an attorney appointed as counsel to represent
a child’s legal interests may also serve as the child’s guardian ad litem (“GAL”),
responsible for asserting the child’s best interests, so long as the child’s legal interests
do not conflict with the attorney’s view of the child’s best interests. Id.In this case, we consider issues relating to appellate review of a trial court’s
appointment of legal counsel under Section 2313(a). For the reasons set forth below, we
conclude that, while an appellate court should verify that the orphans’ court appointed
counsel to represent the child’s legal interests, it may not assess sua sponte the
performance of that representation. After review, we affirm the decision of the Superior
Court, which affirmed the termination of parental rights in this case.
I. Facts and Trial Court Determination
1 The full text of Section 2313(a) is set forth infra at 23 n.21.
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The issue before this Court involves a question of law related to whether, and how,
an appellate court should review sua sponte appointed counsel’s representation of
children’s legal interests in a termination of parental rights proceeding. Specifically, we
address, inter alia, whether reviewing courts must determine sua sponte whether a
conflict existed in an attorney’s representation of a child’s best interests and legal
interests and whether counsel’s advocacy for the child’s legal interests included placing
the child’s preferred outcome on the record. As applied to the case at bar, the parties
dispute whether a remand is necessary to determine if the appointed counsel suffered
from a conflict in representing the children’s legal interests and best interests and for the
placement of the children’s preferred outcomes on the record. Notably, the merits of the
termination of parental rights in this case are not before this Court. Nevertheless, we
briefly address the facts leading to the termination proceeding to provide context to the
questions surrounding the children’s representation in this case.
Appellant T.L.G. (“Mother”) is the mother of four children: A.M.G., S.A.G., K.M.G.,
and J.C.C (collectively “the Children”). 2 At the time of the termination of parental rights
hearing, the children were eight, six, five, and two years old, respectively. The Juvenile
Court in McKean County became involved with the family in August 2015, when the
McKean County Children and Youth Services (“CYS”) filed dependency petitions for all
2 Unless otherwise specified, we draw the factual recitation from the memoranda and
orders of the McKean County Orphans’ Court authored by President Judge John H.
Pavlock in support of termination of Mother’s parental rights to the four children in this
case. We observe that Judge Pavlock oversaw the dependency proceedings in Juvenile
Court and the subsequent contested termination of parental rights proceedings in
Orphans’ Court. The court entered substantially identical memoranda and orders for each
child, differing only in regard to specific biographical information. Memorandum and
Order, In re A.M.G., No. 42-17-0240, 3/2/2018; Memorandum and Order, In re S.A.G.,
No. 42-17-0241, 3/2/2018; Memorandum and Order, In re K.M.G., No. 42-17-0239,
3/2/2018; and Memorandum and Order, In re J.C.C., No. 42-17-0242, 3/2/2018. The
citations in this opinion derive from the docket entries relating to K.M.G. unless otherwise
indicated.
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four children, as a result of their parents’ inability to provide proper care, especially in
regard to their medical care and school attendance. 3
Specifically, CYS observed that Mother was unable to control chronic lice
infestations affecting the children, as manifested in the eldest child having thirty-eight
reports of lice during the 2014-2015 school year.4 The failure to address the issue at
home required this child to receive treatments at school, which apparently resulted in
other children bullying her. This child also suffered from an untreated gastrointestinal
issue resulting in pain and the inability to control her bowels. Despite referrals, Mother
did not follow through on recommended medical appointments to address the eldest
sibling’s significant gastrointestinal issue and also missed newborn appointments for the
youngest sibling. Mother additionally faced truancy charges as the eldest child missed
forty-seven days of school during the 2014-2015 school year. Given this background,
Juvenile Court Judge Pavlock adjudicated the four Children dependent in November
2015.
As is relevant to the issues before this Court, Attorney Mark Hollenbeck began
serving as the Children’s GAL as early as January 2016.5 See Master’s Recommendation
- Permanency Review (Non-Placement) dated Jan. 21, 2016. The Master’s
Recommendation, as adopted by Judge Pavlock, explained that “the views of the
3 At various points during the relevant time period, the Children’s father was also involved
with and responsible for their care. His involvement, however, is not relevant to the issues
before this Court as he consented to the relinquishment of his parental rights in August
2017, which the trial court granted in April 2018. Accordingly, we will not discuss his
involvement in the case and, instead, will reference the factual history solely in reference
to Mother.
4While the record is unclear, it appears that the eldest was the only school-aged child
during the 2014-2015 school year.
5 Two other individuals served as GAL prior to Attorney Hollenbeck’s appointment.
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child[ren] regarding the permanency plan have been ascertained to the fullest extent
possible and communicated to the court by the [GAL].” Id. This notation was repeated
in subsequent review orders over the next two years.
While Mother was initially compliant with the family’s permanency plan in the spring
of 2016, her progress slowed in May 2016, when the family’s house was condemned.
Additionally at this time, Mother had a new paramour, Richard Youngs, III, who was a
registered sex offender.6 During the summer of 2016, due to Mother’s unstable housing
and her continuing relationship with Mr. Youngs, the court twice placed the Children in
short-term foster care. 7 They were returned to Mother’s custody in the fall of 2016, after
she made some progress. However, during the winter of 2016-2017, the children again
experienced lice infestations, and Mother failed to attend to the Children’s significant
dental issues.8 Memorandum and Order, dated Mar. 2, 2018, at 3, 6. The court noted
that “[t]his lack of dental care and hygiene resulted in the children having extensive dental
problems, pain[,] and tooth removal.” Id. at 3.
The Juvenile Court removed the Children from Mother’s custody again in February
2017, following an emergency room visit for S.A.G., then five years old, who had alleged
that one of Mr. Youngs’ children had sexually assaulted her. Despite the alleged assault,
Mother allowed Mr. Youngs to continue to live with her and the Children. The Juvenile
Court granted CYS’s request to place the Children with their father’s aunt and uncle
(“Paternal Aunt and Uncle”), who “took immediate efforts to adjust the children's diet and
6 According to the trial court, Mr. Youngs was required to register as a Tier 2 sex offender
in Pennsylvania based upon a conviction for sexual battery in North Carolina.
Memorandum and Order, dated Mar. 2, 2018, at 2.
7 In July 2016, the Juvenile Court appointed a Court-Appointed Special Advocate
(“CASA”) who provided regular, detailed reports regarding the family during the time
period relevant to this case.
8 Attorney Hollenbeck avers that the dental issues began in August 2015.
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the children's behaviors and overall health immediately improved.” Id. at 4. The court
additionally stated that Paternal Aunt and Uncle “worked closely with CYS, service
providers[,] and medical and dental providers to assure the children's safety and
wellbeing.” Id.
Following the removal, Mother made minimal progress on her reunification goals.
Additionally, Mother continued to reside with Mr. Youngs and his children, even though
his presence jeopardized her subsidized housing. Notably, Mother “repeatedly tried to
hide and deceive other[s] regarding Mr. Youngs’ residency in her home.” Id. Moreover,
she did “not have frequent contact with the children,” often cancelling appointments which
caused the children distress. Id. at 4, 7.
In December 2017, CYS filed petitions to terminate Mother’s parental rights to the
four Children. On January 8, 2018, Judge Pavlock, now sitting as an orphans’ court judge,
appointed Attorney Hollenbeck to “represent both the best interests and the legal
interests” of the four Children after specifically finding that Attorney Hollenbeck could
“adequately represent both the [Children’s] best interests and legal interests without
conflict.” Order of January 8, 2018.
While the order did not provide additional details regarding the court’s finding of no
conflict, we observe that Judge Pavlock had been involved with the Children’s case for
over two years, during which time Attorney Hollenbeck had served as the Children’s GAL.
Indeed, as noted above, the permanency review orders repeatedly indicated that Attorney
Hollenbeck had ascertained and communicated the children’s preferences to the Juvenile
Court, upon which information Judge Pavlock presumably relied when determining that
Attorney Hollenbeck could be appointed as legal counsel without conflict. See, e.g.,
Master’s Recommendation - Permanency Review (Non-Placement) adopted by Judge
Pavlock on June 21, 2017 (“The views of the child[ren] regarding the permanency plan
have been ascertained to the fullest extent possible and communicated to the court by
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the [GAL].”) The court additionally indicated that any party could object to the
appointment of Attorney Hollenbeck within ten days of the order; however, no party
objected. 9
The court held a termination of parental rights hearing in February 2018. The court
succinctly summarized the testimony provided by the CYS caseworkers, which the court
accepted as accurate:
They all indicated that Mother at times will attend
appointments and does have contact with [the Children].
However, the contact and its consistency is intermittent.
Mother could have more contact but does not. They all
testified that [the Children] have a bond with Mother. Each
expressed concern regarding Mother's ability and difficulty
understanding and following through with their
recommendations and requests. They all testified that Mother
puts her relationship with Mr. Youngs and her care of his
children ahead of the requirements of the reunification plan
and her responsibilities for her children.
Tr. Ct. Op. at 5. The caseworkers also testified to the Children’s dramatic improvement
in terms of their health and behavior in the home of Paternal Aunt and Uncle, who were,
and presumably remain, willing to adopt the Children. As is relevant to the issues raised
in this case, the GAL/Counsel did not place each child’s preferred outcome on the record
at this hearing but did assert that he viewed termination to be in the Children’s best
interests.
Based upon the evidence supporting Mother’s inability to care for the Children’s
medical and dental issues and to progress toward her goals, the court concluded that
CYS demonstrated by clear and convincing evidence that Mother’s parental rights should
be terminated under several subsections of Section 2511(a), which provides grounds for
9 An attorney appointed to serve as both GAL, representing a child’s best interests, and
as counsel, representing a child’s legal interests, as occurred with Attorney Hollenbeck in
this case, will be herein referred to as a “GAL/Counsel.”
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termination of parental rights. Specifically, the court found that Mother “refused or failed
to perform parental duties” for at least six months immediately prior to the filing of the
termination petition. Id. at 12 (referencing 23 Pa.C.S. § 2511(a)(1)). Second, the court
opined that “Mother's repeated incapacity and/or refusal has caused [the Children] to be
without proper parental care and control and the cause is unlikely to be remedied.” Id.
(indicating the necessary requirements for 23 Pa.C.S. § 2511(a)(2)). Additionally, the
court recognized that the Children had been removed from Mother’s care for at least six
months and that “even with assistance, Mother will be unable to remedy the conditions
that necessitated placement.” Id. (referencing 23 Pa.C.S. § 2511(a)(5)). Finally, the court
indicated that “twelve months or more have elapsed from the date of [the Children’s]
placement and the initial conditions that led to placement continue to exist.” Id.
(demonstrating sufficiency for termination under 23 Pa.C.S. § 2511(a)(8)).
The court additionally found “that the termination of parental rights would best
serve [the Children’s] developmental, physical and emotional needs and welfare.” Id.
(referencing 23 Pa.C.S. §2511(b)). In so doing, the court emphasized that the Children
were doing well in the care of Parental Aunt and Uncle, who indicated their desire to adopt
them and to “allow and encourage the [C]hildren to have a relationship with their natural
parents.” Id. at 13.
II. Superior Court Decision
Mother appealed to the Superior Court raising two issues in her Statement of
Matters Complained of on Appeal. She challenged whether the trial court erred in
concluding that CYS had proven the grounds for termination of her parental rights under
23 Pa.C.S. § 2511(a) by clear and convincing evidence. She also contested the Orphans’
Court’s assessment of the effect of termination on the Children for purposes of 23 Pa.C.S.
§ 2511(b). The trial court subsequently entered brief Pa.R.A.P. 1925(a) opinions
referencing its memoranda and orders discussed supra.
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The Superior Court consolidated the appeals relating to the four Children and
heard the case en banc, directing the parties to address a new issue: “whether, in
reviewing involuntary termination of parental rights decisions, this Court has the obligation
to review sua sponte whether the [GAL] had a conflict.”10 In re Adoption of K.M.G., 219
A.3d 662, 666 (Pa. Super. 2019).
The Superior Court first observed that juvenile courts in dependency matters may
appoint a GAL “to represent the legal interests and the best interests of the child.” Id. at
667 (citing 42 Pa.C.S. § 6311(a); Pa.R.J.C.P. 1151(A)). If the case transitions into
termination proceedings, the court noted that the orphans’ courts will often appoint the
10 The Superior Court specifically sought briefing on the following four issues:
1. Is it mandatory that the Superior Court, in an appeal from
an involuntary termination decision, review sua sponte
whether the child’s legal counsel and/or guardian ad litem
[“GAL”] properly represented the child’s legal interest,
particularly in regard to whether there was a conflict between
GAL’s representation and the child's stated preference?
2. When a party properly raises the issue of whether a GAL
has a conflict before the orphans’ court, what is the standard
of review that Superior Court must use to review the decision
of the trial court?
3. When a party raises the issue that the GAL has an
undisclosed conflict for the first time on appeal before
Superior Court, must Superior Court remand the case to the
orphans’ court to determine whether a conflict exists or may
Superior Court make its own determination from the certified
record?
4. What factors must the orphans’ court consider and findings
the orphans’ court must make in determining whether the
child’s preference differs from the child’s best interests and
thus, the GAL has a conflict?
In re Adoption of K.M.G., 219 A.3d 662, 666–67 (Pa. Super. 2019).
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GAL serving in the dependency proceedings to continue to serve as GAL representing
the child’s best interests and also as counsel to represent the legal interests of the
children, pursuant to Section 2313(a), which mandates the appointment of counsel to
represent the children’s legal interests in contested termination proceedings. 23 Pa.C.S.
§ 2313(a).
The court then turned to consider whether and to what extent appellate courts
could evaluate sua sponte GAL/Counsel’s simultaneous representation of children’s legal
interests and best interests. The court acknowledged that appellate courts are limited to
addressing issues raised by the parties, absent certain exceptions such as subject matter
jurisdiction or where this Court has specifically authorized review. It recognized this
Court’s teaching that a restrictive invocation of sua sponte review “respect[s] orderly
judicial decision-making, afford[s] counsel the opportunity to brief and argue issues,
permit[s] the court to benefit from counsel's advocacy, and uphold[s] issue preservation
rules.” Id. at 669 (citing Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975)). It noted
that this Court had yet to provide it authority to address a GAL/Counsel’s representation
sua sponte. Id.The court recognized, however, that previous Superior Court panels had
addressed, sua sponte, issues relating to an individual’s statutory right to counsel. It
recited that a separate panel of the Superior Court had recently addressed sua sponte
the failure to appoint legal counsel for children in a termination hearing, citing In re K.J.H.,
180 A.3d 411 (Pa. Super. 2018). We briefly address the details and reasoning of the
Superior Court in K.J.H.
In K.J.H., the Superior Court recognized that the orphans’ court in that case failed
to appoint legal counsel for a child in a termination proceeding. The court concluded that
it could address the issue sua sponte based upon our holding in In re L.B.M., 161 A.3d
172 (Pa. 2017), that the absence of counsel constitutes structural error which affects the
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framework of the termination proceedings. The court in K.J.H. analogized to its prior
decision in In re X.J., 105 A.3d 1 (Pa. Super. 2014), where the Superior Court had
similarly determined that it could address, sua sponte, the failure of an orphans’ court to
appoint counsel for a parent in a termination proceeding pursuant to a different subsection
of Section 2313, 23 Pa.C.S. § 2313(a.1). K.J.H., 180 A.3d at 413 n. 2.
The Superior Court’s decision in X.J., in turn relied upon that court’s prior holding
in Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011), where the court
reviewed on its own motion whether the petitioner had intelligently, knowingly, and
voluntarily waived his statutory right to counsel for his first Post-Conviction Relief Act
(“PCRA”) petition. The court in Stossel reasoned “that where an indigent, first-time PCRA
petitioner was denied his right to counsel - or failed to properly waive that right - this [c]ourt
is required to raise the error sua sponte and remand for the PCRA court to correct that
mistake.”11 Id. The court in X.J. applied this same phraseology to a mother’s right to
counsel in a termination of parental rights proceeding, concluding that it was required to
address the issue sua sponte and remand for a new termination hearing, given that the
mother had neither been provided notice of her right to counsel nor been appointed
counsel during the termination proceedings.
Returning to the Superior Court’s reasoning in K.J.H., addressing the appointment
of legal counsel for children in termination proceedings, the court opined that the need to
address, sua sponte, the lack of counsel for children under Section 2313(a) was amplified
by the inability of children to assert their right on their own due to their minority status.
The Superior Court accordingly deemed sua sponte review required where an orphans’
court fails to appoint any counsel to represent children in a contested termination of
parental rights case, in violation of Section 2313(a). K.J.H., 180 A.3d at 414.
11 We observe that this Court has not spoken to the issue addressed in Stossel.
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After reviewing, inter alia, its decisions in K.J.H. and Stossel, the Superior Court in
the case at bar opined that the “Superior Court only has the authority to raise sua sponte
the issue of whether the lower court appointed any counsel for the child, and not the
authority to delve into the quality of the representation.” Id. at 667-68. To restate its
holding, the Superior Court explained that it did “not have the authority [to] review sua
sponte whether a conflict existed between counsel's representation and the child's stated
preference in an involuntary termination of parental rights proceeding.” Id. at 670. In so
doing, the Superior Court overruled its prior decision in In re Adoption of T.M.L.M., 184
A.3d 585 (Pa. Super. 2018), where a panel of the court previously concluded that sua
sponte review was required to ascertain whether the GAL had a conflict in representing
the children’s legal interests in involuntary termination cases.12
The Superior Court in the case at bar additionally opined that the structure of the
termination proceedings provided other mechanisms to guard against a GAL/Counsel
representing a child’s legal interests despite a conflict with best interests. It observed that
counsel is bound by Rule of Professional Conduct 1.7 to notify the orphans’ court in the
event of a conflict to allow for the appointment of separate counsel. The Superior Court
also recognized that the other parties in the termination proceeding, such as the parents
12 In T.M.L.M., although the orphans’ court opined that it had appointed counsel in
compliance with our decision in L.B.M., the record did not contain an order reflecting an
appointment to represent the child’s legal interests, but instead only contained a reference
to the appointment of counsel as a GAL. The Superior Court in T.M.L.M. then delved into
the transcript of the hearing to consider the counsel’s representation, where counsel
revealed that she had not met or talked with the child prior to the termination hearing, but
instead had spoken with the foster mother. Additionally, the counsel’s statements were
phrased in terms of the child’s best interests, without an expression of the child’s preferred
outcome. The Superior Court in T.M.L.M. concluded, sua sponte that counsel had not
“effectively represented [the c]hild’s legal interest” and remanded for the appointment of
new legal counsel to ascertain whether the termination was consistent with the child’s
preferred outcome and for the court to then determine whether a new hearing is
necessary. Id. at 590-91.
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and the child welfare organization, also provide a check as they have standing to raise
the issue of conflicted representation. Moreover, the court noted that the orphans’ court
itself has the ability to address the issue of conflict, as occurred in this case where the
order appointing Attorney Hollenbeck indicated the absence of a conflict of interest.
The Superior Court also addressed and rejected Mother’s challenges to the merits
of the termination, based upon its conclusion that the trial court did not err or abuse its
discretion in determining that CYS had met its burden by clear and convincing evidence
to establish grounds for termination. It specifically opined that the record supported the
trial court’s conclusion that “Mother demonstrated a continued incapacity to parent the
Children and Mother was unwilling or unable to remedy the incapacity in the near future,”
as required for Section 2511(a)(2).13 Id. at 674. It additionally concluded that the trial
court did not abuse its discretion in determining that termination was in the best interests
of the children as required by Section 2511(b). 14
President Judge Emeritus Bender filed a dissenting opinion joined by Judges
Kunselman and McLaughlin. “[T]o assure that the child’s right is protected,” the
13 The court observed that if trial court’s decision was supported based upon one of the
identified grounds for termination, it need not address the other grounds.
14 The Superior Court majority opinion was authored by Judge Dubow and joined by
Judges Panella, Lazarus, and Murray. The court also discussed the additional three
issues upon which it directed briefing, see supra at 9 n.10, which address aspects of a
court’s review of the potential conflict of a GAL/Counsel representing a child’s legal
interests and best interests. As we affirm the court’s decision not to adopt sua sponte
review of a GAL/Counsel’s potential conflict of interest, we find it unnecessary to speak
to these issues.
We observe that Judge Olsen, joined by Judge Nichols, filed a concurring and dissenting
opinion. She concurred with the majority’s decision that the court “lack[ed] authority to
consider, sua sponte, whether a conflict exists between a child’s legal interest and the
child’s best interest in the context of a contested termination of parental rights
proceeding,” but dissented from the majority’s determinations on the three additional
questions, which she viewed as “advisory in nature.” Id. at 676 (Olsen, J., concurring in
part and dissenting in part).
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dissenting judges concluded that the Superior Court should review sua sponte whether
GAL/Counsel had a conflict in representing both a child’s best interests and legal
interests, “particularly in light of the fact that a failure to raise a question of separate
counsel for the child is non-waivable.” Id. at 677-78 (Bender, P.J.E., dissenting). The
dissent opined that by not allowing sua sponte review of whether a conflict existed, the
court was “potentially allowing the permanent severing of a child's relationship with his or
her birth family without protecting his or her legal rights and best interests.” Id. at 678.
The dissent further explained its view that “if the record does not contain anything to
support whether a conflict exists or does not exist, the trial court must receive evidence
to support either position and render a decision.” Id. The dissent would have remanded
for the trial court to determine whether a conflict existed in this case.
III. Parties’ Arguments
Mother asserts that “[s]ua sponte review of whether a child's legal interest was
represented by counsel during a contested termination of parental rights proceeding is
essential to uphold the mandate of Section 2313(a) of the Adoption Act.” Mother’s Brief
at 12. This review, she contends, should extend beyond merely determining if counsel
was appointed to also include “review of whether a child’s legal interest was represented
and advanced” by counsel which requires consideration of “whether the child’s preference
was ascertainable from the record, and whether the attorney acting ostensibly in the role
of counsel advocated for the child’s preferred outcome.” Id. at 10-11.
She argues that appellate courts should take an active role in reviewing the
appointment of non-conflicted counsel to protect children’s due process rights and also
“to ensure the integrity” and fundamental fairness of termination proceedings. Id. at 13.
Mother emphasizes that court review is necessary because children are unable to assert
their own rights given their “legal and developmental incapacity to do so independently.”
Id.
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In support, Mother relies upon the Superior Court’s prior invocations of sua sponte
review involving a statutory right to counsel for PCRA petitioners in Stossel and for
parents facing termination of parental rights in X.J., discussed supra. Mother asserts that
these cases “involve a well-recognized and important right, a fundamental interest at
stake in the proceeding, and involve contexts where the assistance of counsel is essential
to achieving the relief sought.” Id. at 19. She argues that sua sponte review of counsel’s
representation of a child’s legal interests is similarly critical in termination proceedings
given that “a child in a contested [termination of parental rights] proceeding requires the
assistance of counsel to explain their options, advise them of all possible outcomes, and
then zealously advocate for the outcome they desire.” Id. at 20.
Mother criticizes as too limited the Superior Court’s decision to review only whether
counsel was appointed to represent the child, as provided in K.J.H., arguing instead that
review must also encompass “whether that attorney fulfilled the role of counsel - to
ascertain and advance the children's legal interest(s).” Id. at 21. Mother contends that
the children’s legal interests are advanced by the GAL/Counsel placing the interests on
the record and advocating for those interests. She posits that “[w]here the record fails to
establish a child's preferred outcome, or fails to support a conclusion that a child is not
capable of expressing a preference due to age, development, or any other reason, the
court cannot conclude that the child was represented by counsel as required by Section
2313(a).” Id. at 28. She rejects as insufficient the entry of an order, as in this case, merely
asserting that counsel did not have a conflict representing the legal interests and best
interests, as it fails to indicate the evidence upon which the trial court made it is
determination nor whether the Orphans’ Court inquired regarding the Children’s
preferences. Id. at 22-23.
She also deems the GAL/Counsel’s obligation to uphold his professional
responsibilities to serve as an insufficient safeguard to the Children’s right to
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] - 15
representation of their legal interests as disciplinary proceedings against the attorney fail
to restore the child’s right to representation at the termination hearing. Id. at 24-25
(referencing Pa. Rule of Professional Conduct 1.7). Instead, she argues that judicial
oversight is required to protect the children’s right to representation and that such
oversight requires an “affirmative inquiry into and identification of conflicts, and
appointment of separate counsel when a conflict becomes apparent.” Id. at 25.
The Juvenile Law Center, the Pennsylvania Legal Aid Network, and twenty-five
national, state, and local organizations and individuals jointly filed an amici curiae brief in
support of Mother. Amici urge the court to employ sua sponte review in termination
proceedings to ensure that children receive the benefit of their statutory right to counsel
to advance their legal interests, as they lack the legal capacity to assert their own rights
in this critical proceeding which could permanently server the children’s relationship with
their biological parents. Amici emphasize that sua sponte review, however, should be
limited to cases where the “record is devoid of evidence that counsel was appointed for
the child, separate from the role of a GAL, or when it lacks any evidence that counsel has
determined and articulated the child’s desired outcome.” Juvenile Law Center Amici Brief
at 11 n.6.15
Appellee CYS responds urging this Court to affirm the Superior Court’s decision
and decline to authorize sua sponte appellate review of GAL/Counsel’s representation of
children. As did the Superior Court, CYS emphasizes courts’ limited authority to engage
in sua sponte review and highlights this Court’s admonition against sua sponte review,
which disrupts the orderly development of a case by the parties. CYS’s Brief at 8 (citing
Wiegand, 337 A.2d 256). Notably, it clarifies that the sua sponte review granted by the
15The Juvenile Court Project additionally files an amicus curiae brief in support of Mother,
arguing in favor of sua sponte review to determine whether counsel placed the children’s
preferred outcome on the record.
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] - 16
Superior Court in Stossel and K.J.H. involved whether counsel was appointed and not the
quality of counsel’s representation.
CYS additionally emphasizes that the orphans’ courts have developed procedures
to address the appointment of counsel for children following this Court’s recent
pronouncements. Specifically, it recognizes that, in the wake of L.B.M. and T.S.,
attorneys are now advised to place the children’s preferences on the record during
contested termination proceedings to demonstrate a lack of a conflict of interest. Indeed,
it highlights an October 2018 seminar sponsored by the Pennsylvania Children and Youth
Administrators at which Superior Court judges recommended that counsel place
children’s interests on the record in termination proceedings. CYS’s Brief at 10, n. 2; see
also Hollenbeck’s Brief at 14 n.5.
CYS emphasizes that the termination proceeding in this case, however, occurred
in February 2018 between this Court’s decisions in L.B.M. and T.S. At such time, CYS
avers that courts and counsel assumed that if an attorney serving as both GAL and the
children’s counsel had a conflict in representing both the best interests and legal interests,
then the counsel was obligated to disclose the conflict and ask the court to appoint
separate counsel. In contrast, silence of the GAL/Counsel was evidence that the interests
did not conflict. It further highlights that no party raised the issue of a conflict of interest
in the proceedings before the Orphans’ Court, despite ample opportunity.16
Assuming arguendo that this Court allows appellate review sua sponte, CYS
argues that it “should be limited to whether the record demonstrates that the child's
desired outcome was known and if a conflict existed between that outcome and the GAL's
16 CYS observes that Mother has not alleged at any point in the proceedings, including
before this Court, that the Children’s legal interests in this case in fact conflicted with
GAL/Counsel’s view of their best interests. CYS’s Brief at 8-9. It further emphasizes that
at least J.C.C., the youngest of the children who was two at the time of the termination
proceedings, was too young under this Court’s jurisprudence to be capable of expressing
his preferred outcome. Id. (citing T.S., 192 A.2d at 1092).
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determination of best interests of the child.” CYS Brief’s at 3. It urges the Court to guard
against allowing sua sponte review of the quality of GAL/Counsel’s representation.
Attorney Hollenbeck, the GAL/Counsel in this case, additionally files an Appellee
brief. He emphasizes that the state of the law relating to the representation of children in
termination proceedings pursuant to Section 2313(a) underwent “swift and significant
changes shortly before” the termination proceedings in this case and avers that the law
has been in a “state of flux” during the appellate proceedings in this case. Hollenbeck’s
Brief at 12. Attorney Hollenbeck emphasizes that this case arose immediately after the
decision in L.B.M., when there was no stated requirement that the child’s legal interests
be placed on the record nor a mandate that the GAL/Counsel declare on the record that
the legal interests and best interests did not conflict.17
While not included in the record, Attorney Hollenbeck avers in his brief to this Court
that he met with the Children on December 18, 2017, in conjunction with a permanency
review hearing to ascertain their preferred outcome. He asserts that the Children’s
preferred outcome aligned with his view of their best interests. As set forth above, he
observes that when he was appointed as legal counsel by the trial court, the court
specifically found that he could represent their legal interests without conflict. He
additionally states that he met with the Children again approximately ten days prior to the
termination hearing, at which time he again confirmed that their preferred outcomes
aligned with his view of their best interest. Attorney Hollenbeck echoes CYS’s
17 Attorney Hollenbeck recognizes that following this Court’s decision in T.S. and
subsequent to the termination proceedings in the case at bar, a plurality of the Superior
Court opined that an attorney representing the child’s legal interests should place the
child’s preferences on the record if they were ascertainable. Hollenbeck’s Brief at 14
(citing In re K.R., 200 A.3d 969, 985 (Pa. Super. 2018)). He observes that the court in
K.R. also opined that children are deprived of their statutory right to counsel under Section
2313(a) if their appointed counsel fails to ascertain their preferences. Id.[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] - 18
observation that counsel’s silence at the time of the termination proceedings in this case
should be viewed as an indication that the best interests did not conflict with the legal
interests. In support, he observes that, unlike in this case, he specifically sought the
appointment of a separate counsel in four other cases when he determined that the
children’s legal and best interest did not align. Hollenbeck’s Brief at 8-9.18
Assuming arguendo that this Court holds that the Superior Court should review the
existence of a conflict of interest sua sponte, Attorney Hollenbeck agrees with CYS and
the Juvenile Law Center that any review of that issue should be very limited.
IV. Analysis
This Court has recently and repeatedly divided over the exact contours of the
statutory right to counsel provided by Section 2313(a). T.S, 192 A.3d 1080 (Pa. 2018);
L.B.M., 161 A.3d 172 (Pa. 2017). Nevertheless, we unanimously agreed as to the central
holding that trial courts are obligated by Section 2313(a) to appoint counsel to serve the
critical role of a child’s attorney, zealously advocating for the legal interests of the child
who otherwise would be denied a voice in the termination of parental rights proceedings.
T.S., 192 A.3d at 1082. Given the importance of having an individual dedicated to
advocating for a child’s legal interests, a majority of this Court have also agreed that,
when a child’s legal interests conflict with the child’s best interests, those interests must
18 We recite Attorney Hollenbeck’s averments in regard to his interactions with the
Children as they form part of his argument, while also recognizing that they are not part
of the record in this case. We emphasize that the issue before this Court is a question of
law regarding whether, and if so how, appellate courts should engage in sua sponte
review of GAL/Counsel’s representation of children in termination hearings. Given our
conclusion, we do not address the factual question of whether Attorney Hollenbeck could
represent the legal interests and best interests of the Children in this case, other than to
recognize that the Orphans’ Court concluded that he could do so without conflict. See
Order of Jan. 8, 2018.
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] - 19
be represented by separate individuals during the termination proceeding to ensure that
the child’s legal interests are presented to the orphans’ court.19 20
In the present case, we specifically consider whether, and if so how, an appellate
court has authority “to review, sua sponte, whether a child's legal interest was represented
by counsel during an involuntary termination of parental rights hearing, as required by
Section 2313(a) of the Adoption Act.” In re Adoption of K.M.G., 221 A.3d 649 (Pa. 2019).
19 We recognize that a minority of justices would have found that a child’s legal interests
must always be represented by counsel separate from the GAL representing their best
interests. L.B.M., 161 A.3d at 181 (Wecht, J., joined by Donohue and Dougherty, JJ.).
As is evident from his eloquent responsive opinion in this case, Justice Wecht has been
consistently of the view that children are entitled to two lawyers: one to represent their
legal interests and another to represent their best interests. While we respect his view
and admire the zeal with which he expounds upon it, we simply disagree. We have
confidence in the trial courts, as well as the child-welfare bar, to determine whether a
conflict exists in the representation of children’s best interests and legal interests.
Moreover, we conclude that the safeguards put in place by this Court and the Superior
Court sufficiently protect children’s rights in these proceedings.
20 As previously stated, the child’s “legal interests” represented by counsel include the
child’s preferred outcome, whereas the “best interests” represented by a GAL reflect what
the GAL believes will provide the most beneficial outcome for the child’s well-being. To
explain the distinction, we have relied upon language relating to dependency actions
involving similar concepts:
“Legal interests” denotes that an attorney is to express the
child's wishes to the court regardless of whether the attorney
agrees with the child's recommendation. “Best interests”
denotes that a guardian ad litem is to express what the
guardian ad litem believes is best for the child’s care,
protection, safety, and wholesome physical and mental
development regardless of whether the child agrees.
T.S., 192 A.3d at 1082 n.2 (quoting Pa.R.J.C.P. 1154, cmt.); see also L.B.M., 161 A.3d
at 174 n.2.
While “legal interests” could be viewed as encompassing a broader bundle of
interests, we decline to expand the definition in the current case absent briefing on the
issue.
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As this issue presents a question of law, our standard of review is de novo. T.S., 192
A.3d at 1087.
To begin, we emphasize this Court’s long standing policy disfavoring the exercise
of sua sponte review by appellate courts and, instead, enforcing our Rules of Appellate
Procedure mandating that “[i]ssues not raised in the lower court are waived and cannot
be raised for the first time on appeal.” Pa.R.A.P. 302(a). We recently reiterated the
rationale originally expressed in Wiegand, 337 A.2d 256 (Pa. 1975):
The policy reasons expressed by our [C]ourt twenty-five years
ago behind prohibiting the sua sponte raising of issues by an
appellate court to reverse a judgment are as valid today as
then. Sua sponte consideration of issues disturbs the process
of orderly judicial decision making. A reviewing court
addressing an issue on its own deprives counsel of the
opportunity to brief and argue the issues and the court the
benefit of counsel's advocacy. It renders the lower
proceedings a mere dress rehearsal for further appellate
review.
Danville Area School Dist. v. Danville Area Educ. Ass'n, PSEA/NEA, 754 A.2d 1255, 1259
(Pa. 2000) (internal citation omitted); see also Johnson v. Lansdale Borough, 146 A.3d
696, 709 (Pa. 2016). With this general precept in mind, we consider the arguments
forwarded in favor of sua sponte review in the case at bar.
A. Sua sponte review of whether an orphans’ court appointed counsel for a
child pursuant to Section 2313(a)
We initially observe that the Superior Court in the case at bar reaffirmed its prior
holding in K.J.H., mandating that an appellate court sua sponte verify that the orphans’
court appointed counsel to represent the legal interests of a child involved in a termination
of parental rights case. K.M.G., 219 A.3d at 668. As explained below, we agree with the
Superior Court that sua sponte review of the appointment of counsel is necessary to fulfil
the mandate of Section 2313(a), which unambiguously provides that “[t]he court shall
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] - 21
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).21
As noted, this Court has interpreted this section as requiring “that the common
pleas court appoint an attorney to represent the child’s legal interests, i.e. the child’s
preferred outcome.” T.S., 192 A.3d at 1082. Moreover, we have held that “the failure to
appoint a separate attorney to represent the child's legal interests constitutes structural
error, meaning it is not subject to a harmless-error analysis.” Id.; L.B.M., 161 A.3d at 183.
We additionally concluded that the issue was non-waivable, because the right belonged
to the child who, given that he or she was unrepresented, could not have challenged the
lack of counsel. T.S., 192 A.3d at 1087.
As in T.S., we emphasize that children do not have that the ability or opportunity
to assert the denial of their right to counsel. Given the critical importance and permanency
of termination proceedings, as well as children’s inability to navigate the termination
process themselves, we hold that appellate courts should engage in sua sponte review
to determine if orphans’ courts have appointed counsel to represent the legal interests of
children in contested termination proceedings, in compliance with Subsection 2313(a).
21Section 2313 is entitled “Representation” and includes subsection (a), which provides
as follows:
(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). The subsequent subsections of Section 2313 direct the provision
of counsel for parents and address the payment of costs.
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] - 22
B. Sua sponte review of whether the orphans’ court determined that counsel
could represent a child’s legal interests and best interests without conflict
We additionally conclude that where an orphans’ court has appointed a
GAL/Counsel to represent both the child’s best interests and legal interests, appellate
courts should review sua sponte whether the orphans’ court made a determination that
those interests did not conflict. We emphasize that appellate review of this question does
not involve second-guessing whether GAL/Counsel in fact had a conflict, as discussed in
the next section of this opinion, but solely whether the orphans’ court made the
determination in the first instance.
We again observe that this Court has unanimously determined that a single
attorney cannot represent a child’s best interests and legal interests if those interests
conflict. T.S., 192 A.3d at 1082. Accordingly, in fulfilling its duty under Section 2313(a)
as construed by this Court, the orphans’ court must determine whether counsel can
represent the dual interests before appointing an individual to serve as GAL/Counsel for
a child. Given the essential nature of the GAL/Counsel’s ability to represent a child
without conflict and this Court’s mandate that the orphans’ court make that determination
prior to appointment, we conclude that appellate courts should verify that the orphans’
court indicated that the attorney could represent the child’s best interests and legal
interests without conflict.
We emphasize that the sua sponte review mandated by this section and the prior
section involve binary, record-based determinations. Specifically, we grant sua sponte
review to evaluate (1) whether the orphans’ court appointed counsel to represent the legal
interests of the children and (2) if the appointed counsel also serves as GAL, whether the
orphans’ court determined that the child’s best interests and legal interests did not conflict.
Both inquiries involve a yes or no answer that can be addressed by a review of the
orphans’ court order (or lack thereof) appointing counsel to represent a child under
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] - 23
Section 2313(a). We conclude that this limited review strikes an appropriate balance
between protecting children who cannot assert their own right to counsel, while insuring
the least disruption to “the process of orderly judicial decision making” in termination
proceedings. Danville Area School Dist, 754 A.2d at 1259.
C. Sua sponte review to determine if a conflict exists that would prevent
counsel’s representation of children’s legal interests and best interests
In contrast to the discrete sua sponte review adopted above, we decline to
authorize sua sponte appellate review of whether the record demonstrates that
GAL/Counsel had a conflict in representing both a child’s legal interests and best
interests. We conclude that review of the existence of a conflict does not involve a simple
record-based determination, but instead would require appellate courts to address a fact-
specific determination of whether and to what extent a child’s preferred outcome conflicts
with a GAL/Counsel’s view of her best interests.
The determination of whether a conflict exists does not necessarily result in a yes
or no answer but involves a nuanced determination. Indeed, both the attorney’s view of
the child’s best interests and the child’s preferred outcome likely lie, somewhat
nebulously, on a continuum between strongly favoring termination and strongly
disfavoring termination. It is not for an appellate court to determine how closely the
interests must align or overlap to negate the existence of a conflict. We are especially
hesitant to have appellate courts reweigh an orphans’ court’s determination that the
interests do not conflict, where the orphans’ court has witnessed the parties over the
course of the dependency and termination proceedings and is presumably aware of the
relationship formed between the GAL/Counsel and the children. See In re T.S.M., 71
A.3d 251, 267 (Pa. 2013) (deferring to “trial courts that often have first-hand observations
of the parties spanning multiple hearings” in termination of parental rights proceedings).
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] - 24
We, thus, conclude that the Superior Court in the case at bar made the correct
distinction in regard to issues it should raise sua sponte by mandating review of the
existence, but not the adequacy, of statutorily-required counsel for children in termination
proceedings. Unlike the appointment of legal counsel, the potential conflict of interest in
a GAL/Counsel’s representation of a child is not something that appellate courts should
review sua sponte, without the benefit of appellate advocacy. Where an orphans’ court
enters an order appointing counsel to represent the child and has determined that counsel
does not have a conflict representing the child’s best and legal interests, an appellate
court should not look behind the face of the order, sua sponte, to determine whether
counsel had a conflict in representing the child.22
D. Sua sponte review of whether GAL/Counsel sufficiently advocated for the
children’s preferred outcome during the termination proceedings
We additionally reject the argument that appellate courts should review sua sponte
whether a GAL/Counsel sufficiently advocated for the child’s legal interests by requiring
the child’s preferred outcome to be placed on the record. We observe that Subsection
2313(a) simply does not require counsel to place the child’s legal interests on the record.
Indeed, the statutory directive is to the court, not counsel. As stated above, it provides,
“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.” 23
Pa.C.S. § 2313(a). It is inappropriate and, indeed, unwise for this Court to engage in the
22 We additionally observe that review of the propriety of counsel’s appointment contrasts
with the Superior Court’s handling of other statutory provisions regarding the right to
counsel. Specifically, in Stossel, 17 A.3d 1286, the Superior Court deemed it appropriate
to address sua sponte the failure to provide a petitioner with his statutory right to counsel
in a first PCRA proceeding or to determine if the petitioner knowingly, voluntarily, and
intelligently waived his right to counsel. Similarly, the Superior Court in X.J., 105 A.3d 1,
approved the sua sponte review of the existence of counsel to represent the parents in a
termination hearing. In neither Stossel nor X.J., however, did the Superior Court review
sua sponte the adequacy or effectiveness of the counsel.
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] - 25
judicial creation of what amounts to new statutory duties where we have repeatedly
counseled that “[w]hen interpreting the meaning of a statute, we must not ‘add, by
interpretation, a requirement not included by the General Assembly.’” Kegerise v.
Delgrande, 183 A.3d 997, 1005 (Pa. 2018) (quoting Commonwealth v. Giulian, 141 A.3d
1262, 1268 (Pa. 2016)).
We additionally reject the underlying assumption that the absence of a child’s
preference on the record equates to counsel’s failure to ascertain the child’s preferred
outcome or to provide effective representation of his or her client for purposes of Section
2313(a). Children for whatever reason may understandably resist stating whether their
parents’ rights should be terminated and may be averse to declaring their preference
between their natural and foster parents. While we recognize that it may be a best
practice for a child’s legal counsel to divulge the child’s preferences in order to advocate
for their client’s preferred outcome, we find nothing in the language of the Adoption Act
requiring that their preference be placed on the record, which instead only requires that
the child be appointed counsel. Moreover, we observe that the child’s legal counsel has
a duty of confidentiality to their client, the child, such that they should not be compelled
to disclose the child’s preferences. We are thus wary to create a bright-line rule requiring
counsel and the courts to place the children’s preferred outcome on the record as we are
concerned by both the potential violation of a child’s attorney-client privilege and with the
real specter of placing unconscionable stress on a child by mandating that her feelings
regarding her parents and caretakers be made public and permanently enshrined in the
record.
Instead, we leave the decision of whether to place the child’s preference on the
record to the child’s counsel based upon counsel’s legal determinations in representing
his client, as well as the orphans’ court which has often witnessed the child, relevant
family members, and other stakeholders through months of hearings, sitting as both the
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] - 26
juvenile court and orphans’ court. See T.S.M., 71 A.3d at 267. Accordingly, we reject
sua sponte review of whether counsel placed the child’s interest on the record.
E. Application in the Case at Bar
We now apply the sua sponte review set forth above to the case at bar.
Specifically, we consider whether the Orphans’ Court appointed counsel to represent the
Children’s legal interests in the contested termination of Mothers’ parental rights as
required by Section 2313(a) and whether the Orphans’ Court determined that the
appointed counsel could represent the Children’s best interests and legal interests without
conflict, as mandated by this Court’s precedent applying Section 2313(a), see T.S., 192
A.3d at 1082.
We observe that the Orphans’ Court in the case at bar unequivocally set forth the
answer to both inquiries in its Section 2313(a) order appointing Attorney Hollenbeck.
Specifically, on January 8, 2018, the Orphans’ Court entered an order on the record for
each child appointing Attorney Hollenbeck, who was then serving as the Children’s GAL,
to represent the legal interests of the four children. On the face of the orders, the court
expressly “found that the Guardian ad litem, Mark J. Hollenbeck, Esq., may adequately
represent both the child’s best interests and legal interests without conflict.” Order of Jan.
8, 2018. We conclude that these orders satisfy the necessary sua sponte review to
conclude that the Orphans’ Court appointed non-conflicted legal counsel such that a
remand is not required in this case.
V. Conclusion
For the reasons set forth above, we conclude that our appellate courts should
engage in limited sua sponte review of whether children have been afforded their statutory
right to legal counsel when facing the potential termination of their parents’ parental rights.
Specifically, courts should determine (1) if the trial court appointed statutorily-mandated
counsel to represent a child’s legal interests as required by Section 2313(a) and (2) where
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] - 27
a GAL/Counsel was appointed to represent both the child’s legal and best interests,
whether the orphans’ court determined that those interests did not conflict. In so doing,
we do not authorize sua sponte review of whether the GAL/Counsel had a conflict in
representing both a child’s legal interests and best interests or whether counsel placed
the child’s preferred outcome on the record, as those fact-intensive, nuanced
determinations are not well-suited for sua sponte appellate review.
Applying the relevant review to the case at bar, we conclude that the Orphans’
Court properly appointed Attorney Hollenbeck as legal counsel for the Children after
determining in an order on the record that the attorney could represent the Children’s best
interests and legal interests without conflict. We observe that the grant of review in this
case did not encompass a review of the merits of the termination decision, and therefore,
we do not speak to those issues. Accordingly, we affirm the decision of the Superior
Court’s order, which affirmed the termination of Mother’s parental rights to the Children in
this case.
Chief Justice Saylor and Justices Todd, Dougherty and Mundy join the opinion.
Chief Justice Saylor files a concurring opinion in which Justice Dougherty joins.
Justice Dougherty files a concurring opinion.
Justice Wecht files a concurring and dissenting opinion in which Justice Donohue
joins.
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