Right to counsel

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Legislation, Termination of Parental Rights (State) - Birth Parents

In most states, adoption proceedings are separate from termination of parental rights proceedings stemming from an abuse or neglect finding. However, it appears that in Pennsylvania, the state uses the Adoption Act to file termination of parental rights petitions based on abuse/neglect. See, e.g.In re Adoption of J.N.F., 887 A.2d 775, 778 (Pa. Super. Ct. 2005). In turn, the Adoption Act requires the court to appoint counsel for a parent in an involuntary termination proceeding if, upon petition of the parent, the court determines that the parent is unable to pay for counsel or if payment would result in substantial financial hardship. 23 Pa. Cons. Stat. Ann. § 2313(a.1).

 

In In re X.J., 105 A.3d 1, 5 (Pa. Super. Ct. 2014), the court held that while a parent must make a request for counsel, a parent does not waive the right where the parent is never informed of their need to make such a request.  Thus, where mother had been represented at the dependency phase but not the termination phase, it concluded that “the best course of action is to remand this case for a new termination hearing, before which the orphans' court shall advise Mother of her counsel rights, appoint counsel for Mother, or affirmatively determine that Mother does not qualify for counsel.”  And in In re Adoption of C.A.S., 2017 Pa. Super. LEXIS 454 (Pa. Super. Ct. 2017), a court reversed a termination where the father had received conflicting notices of who to contact if he wished to request appointed counsel.  See also In re Adoption Of: A.A.P., 2017 Pa. Super. Unpub. LEXIS 4187, *2-3 (Pa. Super. 2017) (holding that “[T]he failure to appoint counsel in a termination of parental rights case is a structural error” and that “[A] trial court must advise a parent of his or her right to counsel for a direct appeal from the termination of his or her parental rights”). 

Appointment of Counsel: categorical Qualified: no