In Re: P.G.F., Appeal of: K.F.

[J-91-2020] [MO: Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
IN RE: P.G.F : No. 7 WAP 2020
:
: Appeal from the Order of the
APPEAL OF: K.F., NATURAL FATHER : Superior Court entered January 27,
: 2020 at No. 1284 WDA 2019
: affirming the Order of the Court of
: Common Pleas of Bedford County
: entered August 7, 2019 at No. 3 AD
: 2018.
:
: ARGUED: October 22, 2020
DISSENTING OPINION
JUSTICE WECHT DECIDED: MARCH 25, 2021
In Section 2313 of the Adoption Act, the General Assembly of Pennsylvania
mandated 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). As the Majority recognizes, the General Assembly made
the policy decision “that children be given a voice in termination proceedings.” Maj. Op.
at 9. This Court has made it clear that the plain language of the statute demands “a
lawyer who represents the child’s legal interest and who is directed by the child.” In re:
Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017). Because today’s Majority permits
something less than the client-directed counsel that the statute mandates, I respectfully
dissent.
The facts of this case are unusual. First, unlike most termination of parental rights
(“TPR”) cases, this case did not begin as a dependency proceeding. At the time that the
TPR petition was filed, the appointed attorney/guardian ad litem (“GAL”), Carol Ann Rose,
Esquire, did not have a long-standing relationship with P.G.F. (“Child”). In fact, Attorney
Rose had not interacted with Child at all before her dual appointment as counsel and
GAL. Second, no one contends that K.F. (“Father”) had a parental relationship with Child
when the TPR process began. Child did have a relationship with the paternal
grandmother, who had exercised some of Father’s custody time. But it is clear that no
one informed Child about his relationship with Father or about how a TPR order would
affect that relationship.1 Further, when the Superior Court remanded the case on Father’s
first appeal, it noted that Attorney Rose had neither articulated Child’s legal interests nor
stated that Child was developmentally unable to express his legal interests. In re P.G.F.,
1464 WDA 2018, 2019 WL 1199986, at *3, *4 (Pa. Super. Mar. 12, 2019) (unpublished
memorandum).
Following the remand, the trial court re-affirmed the TPR order. Father again
appealed. This time, a majority of the Superior Court panel affirmed, holding that the
record supported the trial court’s determination that there was no conflict between Child’s
1 The effect of the TPR on the parental grandmother’s custody is unsettled. This
Court has permitted grandparents to intervene “as any other individual or individuals who
seek to adopt a child” in an adoption proceeding after the biological parents’ consent to
adoption was accepted and their parental rights terminated. See In re Adoption of Hess,
608 A.2d 10, 15 (Pa. 1992). However, the Court has not directly addressed the extent to
which a grandparent as to whose grandchild parental rights were terminated may
continue to seek or exercise custody rights, nor has the Superior Court conclusively ruled
upon the issue. Compare Rigler v. Treen, 660 A.2d 111, 113 (Pa. Super. 1995) (citing
the statute then-equivalent to 23 Pa.C.S. § 5326 that terminates a grandparent’s rights to
seek custody when a grandchild is adopted except when the adoption is by a stepparent
or grandparent and holding that “[s]ince the grandparents’ rights survive such an
adoption, it follows that the termination of the biological parent’s rights alone does not cut
off the visitation rights of the biological grandparents.”) with In re M.A.H., 2019 WL
1057357, at *7 (Pa. Super. Mar. 5, 2019) (unpublished memorandum) (holding that
Section 5326 does not preserve a grandparent’s “legal status as a consanguineous
relation following the entry of an adoption decree” and “[a]t most, § 5326 conveys . . . the
ability to seek standing to pursue a custody claim.”). In this case, Mother testified that
she would continue to permit the paternal grandmother to see Child even if Father’s
parental rights were terminated. Notes of Testimony (“N.T.”), 7/31/2018, at 43-44.
[J-91-2020] [MO: Todd, J.] - 2
best and legal interests such that Attorney Rose’s dual appointment was permissible and
that Attorney Rose adequately had represented Child’s interests despite withholding
information from Child. In re P.G.F, 2020 WL 579038, at *4 (Pa. Super. Jan. 27, 2020)
(unpublished memorandum).
Judge Bowes dissented. In her view, Attorney Rose had not fulfilled her duty to
represent Child’s legal interests. Id. at *6-*10. Attorney Rose’s discussion with Child
centered upon Child’s preferences for physical custody, which Judge Bowes observed
was irrelevant to the issue of TPR and adoption, particularly inasmuch as T.G.H.’s
(“Mother”) continuing custody of Child was not at issue.2 Id. at *7. Judge Bowes also
noted that the record indicated Child’s awareness of Father, which developed during
Child’s time with the paternal grandmother. Id. at *8. At the TPR hearing, Mother’s
testimony established that Child recognized Father as a friend of paternal grandmother
and that Child referred to Father by his first name.3 Therefore, while Child did not
accurately understand his biological relationship to Father, the conclusion that Child did
not know Father was not fully supported by the record. Id. at *7-*8.
Judge Bowes also opined that the record demonstrated that Child was able to
express his legal interests. Id. at *8-*9. Thus, when she failed to provide Child with the
information necessary to make an informed decision, Attorney Rose failed to comply with
2 See Letter from Attorney Rose, 6/11/2019 at 1-2 (unpaginated). Attorney Rose
reported that she spoke with Child for twenty minutes, that he was one-month shy of his
seventh birthday at the time, that the name Child associated with “daddy” was the
stepfather’s name, that he wanted to live with Mother and the stepfather, that he did not
know anyone with Father’s name, and that he wanted to be adopted yet did not know
what adoption meant.
3 See N.T., 7/31/2018, at 26 (Mother testifying that, when Child would return from
the paternal grandmother’s house, Mother would ask who was there and Child would
sometimes include Father’s first name in the list of people); see also id. at 31-32 (Mother
testifying that Child refers to Father by Father’s first name and that Child believed Father
to be his paternal grandmother’s friend).
[J-91-2020] [MO: Todd, J.] - 3
the statutory mandate to represent Child’s legal interests. Id. at *10. Judge Bowes stated
that, “it is [A]ttorney Rose’s principal obligation as legal counsel to ascertain [Child’s] legal
interest and promote it. Thus, at a minimum, she must provide [Child] with the necessary
facts to enable him to articulate any preference he has about the outcome of the
termination proceedings.” Id. at *9. Despite the difficulty inherent in informing Child of
the reality of his family situation, Judge Bowes concluded that the statutory mandate
rendered this task necessary and that Attorney Rose had both the authority and the
obligation to do so in ascertaining and advancing Child’s legal interests. Id. at *10.
The Majority chooses to embrace the Superior Court majority’s view. From our
recent decision in In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020), the Majority gleans
that a child’s attorney/GAL “must, at a minimum, attempt to ascertain the child’s
preference and advocate on the child’s behalf.” Maj. Op. at 13. However, because
children necessarily possess varying levels of ability to understand and communicate,
“ascertaining a child’s preferred outcome may involve various circumstance-appropriate
strategies.” Id. Because Child was unaware of his family situation, and because he “could
be emotionally harmed if informed of such facts or closely interrogated regarding his
preference,” the Majority concludes that Attorney Rose was required to use “caution and
reflection” and that courts should afford “significant deference . . . to counsel’s approach
in discerning a child’s preference and the child’s articulation thereof.” Id. at 14.
The Majority finds the Superior Court’s decision in In re: Adoption of C.J.A., 204
A.3d 497 (Pa. Super. 2019), to be consistent with this approach. Id. at 15. In that case,
a child did not know his biological father. In re: C.J.A., 204 A.3d at 502. For that reason,
the appointed attorney stated that she was unable to explain the effect of the TPR to the
child. The Superior Court held that the attorney had fulfilled the requirements of Section
[J-91-2020] [MO: Todd, J.] - 4
2313 under the circumstances and that she had discharged her duty of representing the
child’s legal interests in light of the child’s age, maturity, and emotional condition.
But C.J.A. is distinguishable on two important points. First, the attorney in C.J.A.
reported to the court that she could not ascertain the child’s preferred outcome given the
child’s age and development.4 Here, Attorney Rose made no such claim. Instead,
despite Child’s unawareness of the true nature of the proceedings, Attorney Rose
informed the court of what she perceived to be Child’s legal interest. Second, in C.J.A.,
the trial court did not terminate the father’s parental rights. Id. at 498. Therefore, even if
the child was incapable of processing the information about who the father was at the
time of the TPR hearing, further litigation was contemplated because the father had filed
for custody before the TPR was filed. Id. at 499. Thus, even if the attorney and the trial
court were wrong about the child’s ability to understand the situation, the child would likely
have an opportunity to express his wishes at a later date. Stated otherwise, the parental
relationship was not permanently ended with the child being permanently deprived of the
opportunity to express a preferred outcome.
My views align substantially with those advanced by Judge Bowes in her
persuasive dissent. No one disputes that Attorney Rose was put in a difficult position
when Child’s family chose not to tell him the truth about his family situation. But the
evidence that Attorney Rose chose to present regarding Child’s legal interest largely was
irrelevant to the issue of the TPR and adoption. While a child’s preference about custody
4 See In re C.J.A., 204 A.3d at 502 (quoting the attorney’s brief to the court
explaining that “[D]ue to the age and maturity of [Child] along with the fact that he did not
know [Father] was his biological father, the undersigned, as legal counsel, was unable to
explain the termination of parental rights proceeding and/or discuss the potential adoption
by [Fiancé]. . . . As a result, the undersigned was unable to set forth a position on the
record since the undersigned was only appointed as legal counsel and not as a [GAL]
and it could not be sufficiently ascertained as to what [Child’s] position would be regarding
the termination of parental rights.”).
[J-91-2020] [MO: Todd, J.] - 5
could be relevant to TPR (particularly if the child wants to live with the parent whose rights
are subject to termination), that will not always be the case. The question that TPR
proceedings ask is whether the child will have any ongoing connection with the parent
and the parent’s extended family. That is usually unrelated to where the child wants to
live. This is particularly true here insofar as Father has not sought custody.
I do not suggest that a child in a similar situation would always have to be told the
entire unvarnished truth or that the appointed attorney must be the one to inform the child.
But the gravity of terminating a child’s relationship with a parent and with that parent’s
family is difficult to overstate. Our General Assembly has determined that a child whose
interests are caught up in such an unfortunate proceeding must have a voice in that
process through client-directed counsel.5 Without knowing who Father is and without
knowing the consequences of the TPR, Child cannot adequately form a legal preference.
Nor is this issue an abstract one. For example, Child here has a relationship with his
paternal grandmother, and he may strongly favor her continuing to exercise custody rights
that might be challenged post-TPR.6 Attorney Rose, upon learning such a fact, in turn
would have an obligation to translate this preference into a reason why Child might
oppose termination. A child may not wish to live with a parent who is subject to a TPR
petition, but may not wish to cut off all avenues of contact forever. A child may decide
that, if an absentee parent did not make the effort to participate in the child’s life, the child
5 In re L.B.M., 161 A.3d at 180 (“[W]hen a child’s relationship with his or her birth
family could be severed permanently and against the wishes of the parents, the
legislature made the policy judgment, as is evidenced 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.”).
6 For example, at the remand hearing, Attorney Rose reported that Mother had
severely curtailed the paternal grandmother’s custody, which had upset Child. N.T.,
8/7/2019, at 17-18.
[J-91-2020] [MO: Todd, J.] - 6
wishes to have parental rights terminated in order to facilitate adoption by a step-parent
who is in fact present. But, in this case, we will never know Child’s preference. Even
though Attorney Rose deemed Child to be capable of expressing his own legal interest,7
she did not give Child the facts necessary to make an informed assessment of his
situation, an assessment that could have been aided by the adult assistance of Attorney
Rose and perhaps others. To permit an attorney to withhold vital information from a child
in a contested TPR defeats and destroys that child’s voice and role in the process. And
it utterly confounds the General Assembly’s clear intention.
While we would not countenance an attorney withholding critical information from
a client in other settings,8 I acknowledge that children are different. It may not be
appropriate to inform a child of potentially damaging information in all cases. However,
legal counsel for children should be encouraged to begin from a presumption of
transparency, departing only when extraordinary circumstances strongly militate for
abandonment of that presumption. The simple fact is that the child’s counsel cannot
discharge his or her duty to zealously represent the child’s legal interest if the child lacks
the information necessary to make informed decisions about his or her own interests.
If a child’s attorney discovers that the child is without information that would be
vital to forming a preference, the attorney first must assess whether it is possible to
provide that child with a fuller account without harming the child’s emotional and mental
well-being. Some cases will be easy. A two-year-old clearly does not need to be informed
7 N.T., 8/7/2019, at 13 (Attorney Rose testifying that Child “was able to express” his
preferred outcome).
8 Pennsylvania Rule of Professional Conduct 1.4(b) requires that a “lawyer shall
explain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation,” but recognizes that particular circumstance may
justify “delaying transmission of information.” Id. cmt (“Withholding Information”).
[J-91-2020] [MO: Todd, J.] - 7
that there is another father of whom the child is not aware, while a fourteen-year-old, in
most cases, would be able to understand and process that information.9 At a minimum,
the attorney should inform the court that the child lacks important information and should
explain whether or not (and why) the attorney intends to share that information with the
child so that the court has the proper context within which to assess counsel’s and the
child’s representations of the child’s preference. When uncertain whether or how to
inform the child, the attorney should seek a court-appointed evaluator to determine
whether the child is capable of learning and processing the information in a
developmentally appropriate manner. If the evaluator determines that the information
would be too damaging, then the court can choose to treat the child as one unable to
express a preferred outcome, while the attorney can proceed with whatever information
he or she can glean about the child’s legal interest directly. If the evaluator determines
that the child is developmentally capable of learning the information, the evaluator can
provide guidance on how best to proceed.
The Majority’s decision to defer more or less categorically to the attorney’s
determination about when information should be withheld from the child client undermines
the very nature of the statutorily mandated representation. Today’s disposition allows
counsel to shape, or even distort, the information with which the child must determine the
very preference that it is counsel’s duty to advance. The General Assembly has provided
a child in a contested TPR with the right to an attorney. The rendering of informed advice
9 Amici note that “many advocates consider that children as young as seven can
appropriately and responsibly maintain a traditional attorney-client relationship and will
benefit from one.” Brief of Juvenile Law Center, Community Legal Services Inc., and 16
National, State, and Local Organizations and Individuals Who Are Experts in the Fields
of Child Welfare, Public Policy, and Law at 5. Our Court has endorsed the view that a
child as young as five or six may be able to express “opinions which are entitled to weight
in legal proceedings concerning their custody.” In re T.S., 192 A.3d 1080, 1089 n.17 (Pa.
2018).
[J-91-2020] [MO: Todd, J.] - 8
and the pursuit of vigorous advocacy lie at the heart of the attorney-client relationship, the
nature of which should not fundamentally change with a client of tender years. And to
protect a child who has little or no ability to look after his or her own legal rights, 10 a court
also must have the information required to be satisfied that the child’s attorney does not
suffer from any conflicts and has informed the child of all necessary information to make
informed choices.
It bears repeating that counsel has an obligation to keep a child-client as informed
as is practicable in order to ensure an accurate assessment of the child’s preferences.
That is not to say that counsel should simply provide information to a young child without
regard for the risk of psychological injury or confusion. To the contrary, it equally is
counsel’s duty to address gaps in the child’s relevant knowledge with care and to enlist
specialists and caregivers as circumstances require. I differ with the Majority inasmuch
as I do not believe that courts should defer blindly to counsel’s determinations, but,
instead, must play a role in ensuring that counsel has fulfilled his or her statutory and
ethical duties. As I have said before, whatever challenges such a demanding protocol
presents pale in comparison to the enormous and permanent consequences of
terminating parental rights:
I recognize that courts in all contexts must depend upon the good faith and
integrity of counsel. But where the potential injury is so grave and so
thoroughly irreversible, and where the child whose best interests are
paramount is so vulnerable, courts should do everything in their power to
maximize the likelihood of a fair and just result.
10 See In re. T.S., 192 A.3d at 1087 (“The statutory right under Section 2313(a)
belongs to the child, not the parent. Accord In re E.F.H., 751 A.2d 1186, 1189 (Pa. Super.
2000). There was no attorney representing solely the children’s legal interests who could
have raised their rights in the trial court, and the children plainly could not have done so
themselves.”).
[J-91-2020] [MO: Todd, J.] - 9
In re: K.M.G., 240 A.3d at 1253 (Wecht, J., concurring and dissenting). Our courts must
exercise their duty to prioritize the child’s best interests by ensuring that the child’s
attorney is discharging his or her duty to the child.
To be sure, involving an evaluator in the process will require time and resources,
and could delay permanency for a child. But while permanency is an important
consideration, so is the child’s voice in this critical process. Our General Assembly made
this clear when it enacted Section 2313. The child’s voice and human agency should not
be sacrificed willy-nilly on the altar of a speedy process.
[J-91-2020] [MO: Todd, J.] - 10