In re K.M.G.

219 A.3d 662

IN RE: ADOPTION OF K.M.G.

Appeal of: T.L.G., Mother

In re: Adoption of: A.M.G.

Appeal of: T.L.G., Mother

In re: Adoption of S.A.G.

Appeal of: T.L.G., Mother

In re: Adoption of J.C.C.

Appeal of: T.L.G., Mother

No. 580 WDA 2018

No. 581 WDA 2018

No. 582 WDA 2018

No. 583 WDA 2018

Superior Court of Pennsylvania.

Argued May 29, 2019

Filed September 13, 2019

Erika L. Mills, Bradford, for appellant.

Mark J. Hollenbeck, Bradford, for appellee.

Michele D. Alfieri-Causer, Smethport, for McKean County Children and Youth, participating party.

Samuel W. Milkes, Harrisburg, Amicus Curaie.

BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., and McLAUGHLIN, J.

OPINION BY DUBOW, J.:

In these consolidated appeals, Appellant, T.L.G. ("Mother"), appeals from the Decrees that involuntarily terminated her parental rights to her four minor children ("the Children"). This Court certified this case for en banc review to determine whether, in reviewing involuntary termination of parental rights decisions, this Court has the obligation to review sua sponte whether the Guardian ad Litem ("GAL") had a conflict.

We find that we do not have the authority to address the conflict issue sua sponte . In so holding, we overrule In re Adoption of T.M.L.M. , 184 A.3d 585 (Pa. Super. 2018).¹ We also affirm the orphans' court order involuntarily terminating Mother's parental rights.

On January 4, 2019, this Court certified this case for en banc review. On January 4, 2019, this court certified this case for en banc review of the following issues, slightly reframed for clarity:

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?

The parties have filed supplemental Briefs addressing these issues.

SUPERIOR COURT'S AUTHORITY TO RAISE SUA SPONTE AN UNDISCLOSED CONFLICT OF A GAL

In a dependency case, the trial court appoints a GAL who is "to represent the legal interests and the best interests of the child." 42 Pa.C.S. § 6311(a) ; Pa.R.J.C.P. 1151(A). There will be times when the child's best interest differs from the child's stated preferences. In such instances, the GAL has the professional obligation to notify the court of a conflict. See Rule of Professional Conduct 1.7. When the GAL notifies the court of a conflict, the court will appoint a separate attorney to represent the child's stated interest. See Pa.R.J.C.P. 1154 cmt.

Since the parties in a dependency proceeding are usually identical to those in a hearing on a petition to involuntarily terminate parental rights, the orphans' court often appoints the dependency GAL to represent the child during the termination proceedings. This is pursuant to Section 2313 of the Adoption Act that requires the court to appoint "counsel" to represent the child at the involuntary termination hearing. 23 Pa.C.S. 2313(a). There has been much litigation recently about the term "counsel" and those instances in which a GAL has a conflict and may not serve as "counsel."² See, e.g., In re: Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172 (2017) ; In re: T.S. , ––– Pa. ––––, 192 A.3d 1080 (2018).

We are not defining today those situations in which a GAL has a conflict, but rather the procedural issue of whether Superior Court must sua sponte review every termination case to make an independent determination of whether a GAL has a conflict.

A three-judge panel of this Court, in T.M.L.M. , held that Superior Court must sua sponte make an independent determination of whether a GAL has a conflict in every involuntary termination case. T.M.L.M. , 184 A.3d at 590. In that case, the orphans' court stated on the record that the appointment of the GAL for the involuntary termination hearing complied with L.B.M . and, thus, Section 2313(a). Id. at 588. No party on appeal contested this finding of the orphans' court. Yet, the panel in T.M.L.M. sua sponte reviewed the record, found that the GAL may have a conflict, reversed the order terminating the mother's parental rights, and remanded the case for further proceedings. Id. at 590. We now overrule T.M.L.M because 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.

It is well established that an appellate court may not raise an issue sua sponte , except when the issue addresses the subject-matter jurisdiction of the court. In re Angeles Roca First Judicial Dist. Philadelphia Cty. , 643 Pa. 585, 173 A.3d 1176, 1197 (2017) ("It is foundational that jurisdictional questions may be raised sua sponte ."); Commonwealth v. Parker , 173 A.3d 294, 296 (Pa. Super. 2017) ("A court may consider the issue of jurisdiction sua sponte .").

There are, however, a few discrete, limited non-jurisdictional issues that the Supreme Court has authorized the lower courts to raise sua sponte , such as waiver as a result of various briefing defects. See , e.g. , Commonwealth v. Passaro , 504 Pa. 611, 476 A.2d 346, 348 (1984) (describing Pennsylvania's practice of dismissing pending appeals of escaped prisoners, which the court may do sua sponte ); Berg v. Nationwide Mut. Ins. Co., Inc. , 607 Pa. 341, 6 A.3d 1002, 1015 (2010) ("failure to include issues in a Rule 1925(b) statement resulted in ‘automatic’ waiver, which could be found sua sponte by courts.").

Likewise, the Superior Court has found that it has the authority to consider sua sponte the failure of the trial court to conduct a Grazier hearing to ensure that a defendant has knowingly and voluntarily waived his right to counsel for his first PCRA petition. Commonwealth v. Stossel , 17 A.3d 1286, 1290 (Pa. Super. 2011). This Court based this conclusion on the fact that the PCRA statute entitles an indigent defendant to counsel for his first PCRA petition, and our Supreme Court has acknowledged that "PCRA relief cannot stand unless the petitioner was afforded the assistance of counsel." Id. (quoting from Commonwealth v. Albrecht , 554 Pa. 31, 720 A.2d 693, 699 (1998) ).

Similarly, when the orphans' court fails to appoint any counsel for a child in an involuntary termination hearing, Superior Court may raise this issue sua sponte . In re: K.J.H. , 180 A.3d 411, 413 (Pa. Super. 2018). In K.J.H. , this Court reasoned that since the child had no counsel at the termination hearing and Section 2313(a) requires the appointment of counsel, Superior Court should raise the issue sua sponte in order to protect this statutorily-mandated right of the child. Id.

In contrast, however, our Supreme Court has specifically prohibited the Superior and Commonwealth Courts from deciding certain issues sua sponte . For instance, the Superior Court cannot address constitutional issues sua sponte . See Wiegand v. Wiegand , 461 Pa. 482, 337 A.2d 256, 257 (1975) (criticizing the Superior Court's sua sponte consideration of a constitutional issue, which "exceeded its proper appellate function of deciding controversies presented to it.").

Also, the intermediate appellate courts may not consider sua sponte standing, recusal issues, or the need to file a dependency petition. See In re Nomination Petition of deYoung , 588 Pa. 194, 903 A.2d 1164, 1168 (2006) (noting that our Supreme Court "has consistently held that a court is prohibited from raising the issue of standing sua sponte . Whether a party has standing to maintain an action is not a jurisdictional question."); Commonwealth v. Whitmore , 590 Pa. 376, 912 A.2d 827, 833 (2006) (concluding that the Superior Court erred when it sua sponte removed the trial judge where recusal had never been raised by the parties). See also Fallaro v. Yeager , 364 Pa.Super. 408, 528 A.2d 222, 228 (1987) (finding that a court may not make a sua sponte determination of dependency in a custody action where no dependency petition has been filed or in an action under the Child Protective Services Law).

The Supreme Court disfavors the intermediate appellate court's consideration of issues sua sponte because it is more important to respect orderly judicial decision-making, afford counsel the opportunity to brief and argue issues, permit the court to benefit from counsel's advocacy, and uphold issue preservation rules. Wiegand , supra .

Although our Supreme Court has authorized the appellate courts to raise sua sponte the issues above, it has not authorized the Superior Court to raise sua sponte the issue of whether a GAL representing a child in an involuntary termination hearing has a conflict in such representation. In fact, the most recent Pennsylvania Supreme Court cases addressing the child's statutory right to legal counsel, as opposed to a GAL, in an involuntary termination hearing pursuant to 23 Pa.C.S. § 2313(a) do not involve situations in which the Superior Court raised the issue sua sponte .

In L.B.M. , the parents raised the issue of a conflict with the orphans' court and appealed the issue to Superior Court. L.B.M. , 161 A.3d at 176-77. Similarly, in T....