In Re: Adoption of: K.E.G., a Minor

2022 Pa. Super. 8

• Court: Superior Court of Pennsylvania
• Decided: January 13, 2023
• Docket: 1088 MDA 2022
• Status: Published

Opinion

J-A27002-22

2022 PA Super 8

IN RE: ADOPTION OF: K.E.G., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: K.E.M. F/K/A K.E.M., : MOTHER : : : : No. 1088 MDA 2022

Appeal from the Order Entered July 7, 2022 In the Court of Common Pleas of Cumberland County Orphans' Court at No(s): 016 Adopt 2022

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

OPINION BY DUBOW, J.: FILED: JANUARY 13, 2023

K.E.M. (“Mother”) appeals from the July 7, 2022 Order entered in the

Cumberland County Court of Common Pleas that denied her Petition for

Involuntary Termination of Parental Rights (“TPR Petition”) filed against C.S.G.

(“Father”) in relation to the parties’ biological child K.E.G. (“Child”). Because

the trial court did not appoint legal counsel for Child during the involuntary

termination of parental rights proceeding, we vacate the order and remand

for a new hearing once legal counsel is appointed for Child.

The following factual and procedural history is relevant to this appeal.

Mother is currently unmarried. Child was born out of wedlock in October 2018.

Father has visited Child approximately 10 times, has never filed for custody,

and has never provided for Child financially. Mother has obtained a Protection

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* Retired Senior Judge assigned to the Superior Court. J-A27002-22

From Abuse Order against Father and Father has pleaded guilty to Stalking

and related crimes where Mother was the victim.

On March 16, 2022, when Child was nearly 3½ years old, Mother filed a

TPR Petition against Father and requested that the court terminate Father’s

parental rights pursuant to 23 Pa.C.S. 2511(a) and (b). On April 6, 2022, the

trial court appointed Amy L. Owen, Esq. to serve as Child’s Guardian Ad Litem

(“GAL”) and specifically ordered: “The [GAL] shall represent the best interests

of the minor children. The [GAL] shall not act as the children’s attorney

or represent the children’s legal interests.” Order, 4/6/22 (emphasis

added). The trial court did not appoint an attorney to represent Child’s legal

interests.

On July 7, 2022, the trial court held a hearing on Mother’s TPR Petition.

Father did not appear at the hearing. On the same day, the trial court issued

an order and found that there was clear and convincing evidence to terminate

Father’s parental rights pursuant to Section 2511. However, the trial court

denied the petition pursuant to Section 2512(b), which requires a parent to

aver that an adoption is presently contemplated (except when the child is

conceived as a result of rape or incest). 23 Pa.C.S. 2512(b).

The trial court opined: “Mother is attempting to proceed as a single

parent and does not presently contemplate an adoption by another person. .

. . [Section 2512(a)] does allow a single parent to proceed without an adoptive

plan in the case of rape or incest, but the statute does not allow a single parent

to proceed otherwise. Therefore, the [c]ourt believes it is constrained to deny

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Mother’s [TPR] Petition despite the fact that it finds that there are otherwise

grounds to grant it.” Order, 7/7/22, at ¶5. Notably, the trial court chose not

to address and/or apply the Section 2901 “cause shown” exception to the

statutory requirements of the Adoption Act. See 23 Pa.C.S. 2901.

Mother timely appealed. Both Mother and the trial court complied with

Pa.R.A.P. 1925.

Mother raises various issues for our review, including whether Section

2512(a) violates her constitutional rights to equal protection and due process

by imposing the requirement that Mother aver a contemplated adoption in her

TPR petition. See Mother’s Br. at 4-5.

As an initial matter, we must address the fact that the trial court failed

to appoint legal counsel for Child. Section 2313 of the Adoption Act provides:

“The court shall 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.C.S. § 2313 (a). Further, our Supreme Court has held

that “appellate courts should engage in limited sua sponte review of whether

children have been afforded their statutory right to legal counsel when facing

the potential termination of their parents’ parental rights.” In re Adoption

K.M.G., 240 A.3d 1218, 1238 (Pa. 2020).

Section 2313(a) requires the trial court to “appoint an attorney to

represent the child’s legal interests, i.e., the child’s preferred outcome.” In

re T.S., 192 A.3d 1080, 1082 (Pa. 2018). The failure to appoint legal counsel

constitutes a structural error which is not subject to a harmless-error analysis.

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Id. “[T]he recognized purpose of the statute is to ensure that the needs and

welfare of the children involved are actively advanced.” In re Adoption of

L.B.M., 161 A.3d 172, 180 (Pa. 2017).

It is well-settled that “an attorney appointed as counsel to represent a

child’s legal interest may also serve as the child’s [GAL], responsible for

asserting the child’s best interests, so long as the child’s legal interests do not

conflict with the attorney’s view of the child’s best interests.” K.M.G., 240

A.3d at 1224. However, in this case, the trial court specifically ordered the

appointed GAL not to act as legal counsel and not to represent Child’s legal

interests. Consequently, the GAL was prohibited from acting in a dual capacity

as GAL and legal counsel. Inexplicably, after ordering the GAL to refrain from

acting as legal counsel for Child, the trial court failed to appoint an attorney

to fulfill that role.

We acknowledge that Father did not appear at the hearing to contest

the termination of his parental rights. However, this does not alleviate the

trial court from its responsibility to appoint counsel for Child. Absent a parent

voluntarily relinquishing his or her parental rights, there is no guarantee that

a parent will not contest the termination of their parental rights at any stage

of the proceeding - pre-hearing, during the hearing, post-hearing, or even on

appeal. Stated another way, since Section 2313 requires the appointment of

counsel for a child when one or both parents contest the involuntary

termination proceeding and a parent may still contest the involuntary

termination proceeding after the hearing by filing an appeal, the failure of a

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parent to appear at a termination hearing does not alleviate the need to

appoint counsel for the child. It is only when a parent has voluntarily

relinquished his parental rights prior to the termination hearing that a parent

has waived his right to contest the proceeding and Section 2313 no longer

requires the appointment of counsel for the child.

Instantly, the failure to appoint an attorney to represent Child’s legal

interests constitutes structural error. Accordingly, we vacate the trial court’s

order denying Mother’s TPR Petition without prejudice. We remand for the

trial court to hold a new hearing after appointing counsel to represent Child’s

legal interests.

Order vacated. Case remanded with instructions. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/13/2023

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