Pennsylvania court: denial of counsel in termination case is reversible

05/20/2016, Litigation, Termination of Parental Rights (State) - Birth Parents

In In re S.A.K., 2016 Pa. Super. Unpub. LEXIS 1721 (Pa. Super. 2016), the court reversed a termination of parental rights against a mother who lacked appointed counsel in the TPR proceeding.  The opposing side argued that mother's appointed counsel was dismissed after the dependency proceeding and she didn't request new counsel for the TPR proceeding as required by 23 Pa.C.S. § 2313(a1) ("The court shall appoint counsel for a parent whose rights are subject to termination 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.")  The court found that no one advised mother of her right to ask for appointed counsel, and therefore she had not waived her right.  The court relied on prior case law that states that where a parent is "denied [her] right to counsel -- or failed to properly waive that right -- this Court is required to raise this error sua sponte and remand for the PCRA court to correct that mistake."