Adoption of K.M.G. Apl of: T.L.G.

• Court: Supreme Court of Pennsylvania
• Decided: November 10, 2020
• Docket: 55 WAP 2019
• Status: Published

Opinion

[J-34A-2020][M.O. - Baer, J.] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

IN RE: ADOPTION OF K.M.G. : No. 55 WAP 2019 : : Appeal from the Order of the Superior APPEAL OF: T.L.G., MOTHER : Court entered 9/13/19 at No. 580 WDA : 2018, affirming the Decree entered : 3/5/18 in the Court of Common Pleas of : McKean County at No. 42-17-0239 : : SUBMITTED: April 16, 2020

IN RE: ADOPTION OF A.M.G. : No. 56 WAP 2019 : : Appeal from the Order of the Superior APPEAL OF: T.L.G., MOTHER : Court entered 9/13/19 at No. 581 WDA : 2018, affirming the Decree entered : 3/5/18 in the Court of Common Pleas of : McKean County at No. 42-17-0240 : : SUBMITTED: April 16, 2020

IN RE: ADOPTION OF S.A.G. : No. 57 WAP 2019 : : Appeal from the Order of the Superior APPEAL OF: T.L.G., MOTHER : Court entered 9/13/19 at No. 582 WDA : 2018, affirming the Decree entered : 3/5/18 in the Court of Common Pleas of : McKean County at No. 42-17-0241 : : SUBMITTED: April 16, 2020

IN RE: ADOPTION OF J.C.C. : No. 58 WAP 2019 : : Appeal from the Order of the Superior APPEAL OF: T.L.G., MOTHER : Court entered 9/13/19 at No. 583 WDA : 2018, affirming the Decree entered : 3/5/18 in the Court of Common Pleas of : McKean County at No. 42-17-0242 : : SUBMITTED: April 16, 2020 CONCURRING OPINION

CHIEF JUSTICE SAYLOR DECIDED: NOVEMBER 10, 2020

I join the majority opinion.

Although our Juvenile Court Procedural Rules and numerous opinions appear to

equate the legal interests of a child with the child’s express wishes, I take this

opportunity to clarify my view that the child’s legal interests are broader in scope. See,

e.g., National Ass’n of Counsel for Children, NACC Recommendations for

Representation of Children in Abuse and Neglect Cases 11 (2001) (observing that the

legal interests of the child may be unclear or contradictory, for example, “a child has a

legal interest in being protected from abusive or neglectful parents”). 1 What Section

2313(a) of the Adoption Act requires is “counsel to represent the child in an involuntary

termination proceeding,” 23 Pa.C.S. §2313 (emphasis added), which I take to signify a

client-directed relationship akin, to the extent possible, to one enjoyed by an adult.

Accord ABA Model Act Governing the Representation of Children in Abuse, Neglect,

and Dependency Proceedings §7(c) (2011), Commentary (“The child’s lawyer helps to

make the child’s wishes and voice heard but is not merely the child’s mouthpiece. As

with any lawyer, a child’s lawyer is both an advocate and a counselor for the client.”).

The ABA Model Act’s discussion of a substituted judgment determination, as

contrasted with a best-interests analysis, see id. §7(d) also has salience, in my view.

See ABA Model Act §7(d), Commentary (“A substituted judgment determination is not

the same as determining the child’s best interests; . . . “[r]ather, it involves determining

1These recommendations are presently under review for revisions. See National Ass’n of Counsel for Children, Standards of Practice https://www.naccchildlaw.org/page/StandardsOfPractice (last visited Aug. 14, 2020).

[J-34A-D-2020][M.O. – Baer, J.] - 2 what the child would decide if he or she were able to make an adequately considered

decision.”). Thus, I would also clarify that a child’s legal counsel in involuntary

termination proceedings should carefully screen against conflicts -- not only between

the expressed and best interests of the child -- but also between his substituted

judgment determination (applicable where children lack the capacity to express their

wishes) and a best-interests analysis. When either sort of conflict exists, counsel

should seek the appointment of an independent, best-interests advocate.

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