Right to counsel

Key_development Question_mark

Legislation, Termination of Parental Rights (State) - Children

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 to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents. 23 Pa. Cons. Stat. Ann. § 2313(a).

 

Pennsylvania courts have held that the Pennsylvania Adoption Act creates a right to counsel for a child in involuntary termination proceedings. See In re M.T., 607 A.2d 271, 276 (Pa. Super. Ct. 1992); Barclay v. Barclay, 533 A.2d 143, 147 (Pa. Super. Ct. 1987); In re Adoption of N.A.G., 471 A.2d 871, 874 (Pa. Super. Ct. 1984) (appointment of counsel for child in involuntary termination proceeding when proceeding is being contested by one or both parents is not discretionary; purpose of 23 Pa. Cons. Stat. Ann. § 2313(a) is to "guarantee that the needs and welfare of the children would be advanced actively by an advocate whose loyalty was owed exclusively to them.").

 

Two courts have said it is reversible error for the trial court to fail to appoint counsel for the child, even if this failure was not raised at trial. In re E.F.H., 751 A.2d 1186 (Pa. Super. 2000) (adding that father could appeal denial despite failure of any party, including child, to raise issue at trial, because "The right to counsel belongs to the child, and there is no appointed counsel for the child who could have raised the child's rights in the proceedings before the trial court"); In re Adoption of G.K.T., --- A.3d ----, 2013 WL 4768378 (Pa. Super. 2013) (agreeing with E.F.H., and rejecting argument that error was harmless because counsel would not have been able to communicate with child due to child's young age; purpose of appointment statute is to "ensure that the needs and welfare of a child will be actively advanced by an advocate who owes loyalty only to the child", and "Counsel would still be required to independently advocate for the Child's best interests, regardless of whether the Child can communicate his preference or not. We decline Adoptive Couple's invitation to read an age component into section 2313(a)'s otherwise mandatory text.")

Appointment of Counsel: categorical Qualified: no