Providing a Voice for the Child in Court
While a Pennsylvania Supreme Court decision in an individual's area of practice is always exciting, for child welfare attorneys, the momentous nature is heightened because decisions are infrequent.
June 26, 2017 at 05:13 PM
15 minute read
While a Pennsylvania Supreme Court decision in an individual's area of practice is always exciting, for child welfare attorneys, the momentous nature is heightened because decisions are infrequent. Child welfare attorneys are attorneys who, in Philadelphia and across the commonwealth, represent county children and youth agencies (e.g., Philadelphia's Department of Human Services), parents, or children in Juvenile Act hearings, known as dependency proceedings, see 42 Pa.C.S.A. Section 6301 et seq., and in termination of parental rights (TPR) cases under the Adoption Act. (See 23 Pa.C.S.A. Section 2313(a).) The Pennsylvania Supreme Court's recent companion decisions in In re Adoption of: L.B.M., a Minor and A.D.M., a Minor, are noteworthy for child welfare attorneys not only for their substance, but for the court's sua sponte revision of its original opinions, Nos. 84 and 85 MAP 2016 (Pa. March 28) (revised May 23).
On May 23, in a plurality and revised opinion, the Pennsylvania Supreme Court (Justice David Wecht, joined by Justices Christine Donohue and Kevin Dougherty), addressed the interrelationship of provisions of the Juvenile Act and the Adoption Act. In dependency proceedings, where care of the child is an issue, the Juvenile Act requires that the court “appoint a guardian ad litem [GAL] to represent the legal interests and the best interests of the child.” 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 a parent.
The court interpreted Section 2313(a) as mandating the appointment of counsel who serves the child's “legal interests” which includes expression of the child's wishes, as distinguished from what the GAL believes is best for the child's care and well-being. The original opinion concluded that the dependency GAL did not satisfy the Adoption Act attorney requirement, and thus, “Section 2313(a) requires the trial court to appoint a separate, independent attorney to represent the child's legal interests in a TPR case.” The revised opinion omitted the mandatory second-attorney language, and now holds that a second attorney for the minor should have been appointed “under the facts of the present case.”
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