State considers children’s rights
Blair’s Judge Sullivan recognizes that ‘children are entitled to legal counsel’
Although Pennsylvania Supreme Court justices are having a tough time coming to consensus on how to provide attorneys for children in cases involving termination of parental rights, Blair County Judge Timothy Sullivan has taken the bull by the horns locally, establishing a panel of attorneys willing to represent the children.
Sullivan is aware that the state’s highest court last year established a mandate that all children in termination cases be represented by an attorney who takes the child’s preference to either remain with his parents or with adoptive parents into consideration.
The perplexing question that accompanies the mandate, however, is whether the child’s “legal interests” can be represented by a court-appointed attorney, known as a guardian ad litem, whose primary purpose is to represent the child’s “best interests.”
This legal conundrum originated from a termination case in Franklin County in which the father was incarcerated and the mother was on the verge of homelessness.
The children, then ages 9 and 5, came under supervision of the county’s child welfare agency.
The mother ended up on probation for possession of drug paraphernalia.
The judge in the case initially declined to terminate the mother’s parental rights, but she ended up behind bars for probation violations.
During a second termination hearing, the judge decided it was in the best interests of the children to sever their bond with the mother. However, the older child, while bonding with the his foster family, also expressed strong feelings for his mother and the question came up whether he should have his own counsel to represent those wishes.
The county agency argued that while the Pennsylvania Adoption Act mandated counsel for children involved in termination cases, the guardian ad litem could represent both the best interests and the child’s personal legal rights.
The Supreme Court decided a court-appointed guardian could in many cases fulfill both roles, but if the child’s legal interests differed from his best interests, the court had to ensure that the child had his own attorney.
The Franklin County judge’s order was vacated, and the case was returned for a new hearing.
Since that decision, several termination decisions by judges in Blair, Cambria and Clearfield counties have been vacated and returned locally to determine if the wishes of the children have been taken into consideration.
If not, new hearings were ordered.
Supreme Court rules in August
The issue of whether an attorney guardian ad litem can play both roles for the children in termination cases was addressed once again by the Pennsylvania Supreme Court in August.
That case came from Allegheny County and involved children ages 5 and 4.
This case added a new twist in which the question arose as to how to satisfy the mandate if the children are too young to express an opinion — whether they prefer living with their parent in stressful conditions as opposed to having the permanency provided by an adoptive foster home.
As in the Franklin County case, the justices offered several opinions.
Chief Justice Thomas G. Saylor was joined in a majority opinion by Justices Max Baer, Debra McCloskey Todd and Sallie Updyke Mundy in ruling that, where the best interest and legal interests of the child are the same, the guardian ad litem can serve both roles.
If a child is incapable — as being too young — to express an opinion, the majority stated there can be no conflict between the child’s best interests and legal interests.
The Supreme Court opinion, however, stated the trial judge must be satisfied that the guardian ad litem is fulfilling both roles.
Justice Kevin Dougherty filed a concurring opinion, while Justice Christine Donohue filed a concurring and dissenting opinion.
Justice David Wecht filed a strongly-worded dissent.
He reasoned that the state Legislature, in including a mandate for an attorney to represent each child’s interest, “made the policy judgment, as is evident from the plain, unambiguous language of the statute, that a lawyer who represents the child’s legal interests, and who is directed by the child, is a necessity.”
He said with an attorney acting in both capacities, “role confusion is likely.”
Wecht concluded that serving in both roles is “unsustainable” throughout the many hearings invested in termination proceedings.
He said having the guardian ad litem acting in two roles raises a “two-hat problem.”
Wecht further concluded the “majority takes us further afield,” noting that conflicts between the child’s two interests “will likely be obscured and overlooked.
“At best, today’s majority has failed to provide adequate guidance for determining whether a conflict in fact exists … no standard is provided to guide trial judges.
“In our desire to do right by these children, we cannot overlook or override the right to counsel that the General Assembly has bestowed upon them,” Wecht wrote.
He favored independent counsel be appointed for each child, a expensive proposition for counties.
For instance, Blair County Court Administrator Janice Meadows reported that 75 parental termination cases were filed in Blair County in 2017.
Cases sent back to the counties
Many termination cases are being returned to county courts for review. Just weeks ago, the Pennsylvania Superior Court sent a case back to Clearfield County because it demonstrated the lack of guidance that Wecht said was a problem for local judges.
The case involved parental termination for a mother with children ages 8 and 5.
The county judge appointed a guardian ad litem for the children, attorney Daniel C. Bell, and legal counsel for the children, Joshua S. Maines.
Yet the state appeals court concluded, “despite the appointment of attorney Maines to represent the children, we have no basis to conclude that children’s statutory right to counsel was satisfied.”
Maines, at the conclusion of the hearing, was asked by the judge about the opinions of his clients.
The attorney replied, “Your honor, it’s a difficult thing. …”
The judge replied, “Sure it is. These kind of cases are gut-wrenching. They’re extremely difficult.”
The Superior Court opinion then quoted Maines as saying, “I have to agree with the guardian ad litem. I believe the (child welfare agency) has met its burden, and I think it comes down to, with these kids, just getting some finality for them, getting them to the point where they can have some permanency. Without a really foreseeable timeline, I just don’t think it’s realistic (to deny termination of the mother’s rights).”
The Superior Court opinion concluded that Maines “may have misunderstood his role and substituted his own judgment instead of advocating for the children’s preferred outcomes.”
The case was sent back for a new hearing, and the Superior Court ordered the counsel to interview the children and “attempt to discern their preferred outcomes.”
Maines, when contacted, said he did not want to comment about the case.
Blair County judge appoints a panel
In Blair County, Sullivan has recognized that “there is no dispute the children are entitled to legal counsel.”
The judge believes that the county is abiding by the state Supreme Court’s decisions to determine if there are conflicts between the wishes of the child and those of child welfare authorities, and he said he has appointed children’s counsel in at least three or four cases where there could be differences between the child’s best interests and the child’s preferred outcome concerning termination.
He said he has put together a panel of attorneys willing to represent the children.
Each member of the panel has years of experience handling family and child matters.
Attorneys Susan P. Rea, Larry D. Lashinsky, Maryann Joyce Bistline and Beverly J. Mears have served as guardians ad litem.
Attorney Gerald M. Nelson was recently appointed to represent one of the children in a termination case, while attorneys Thomas K. Hooper and Michael J. Adams have served as hearing officers in the juvenile court.
Lashinsky explained that an attorney representing a child can ascertain what the child desires, but it becomes more difficult the younger the child is.
If the child is 1 year old, he asks, “What can we do?”
“I really can’t ask the child what he or she thinks,” he said.
With children in the 4- to 5-year-old range, the attorney could garner some information that could be passed to the court, such as, “Are you happy where you are? When is the last time you’ve seen your mom or dad?”
Older children may be able to better discuss preferred outcomes, but those outcomes might be in conflict with their best interests, he said.
For instance, a child might want to stay at home with his mother in preference to attending school. That would probably not be in his best interest and would be in conflict with a guardian ad litem’s recommendation, he explained.
On the other hand, he recently represented a 12-year-old whom he described as an intelligent young man who was totally in line with the recommendation that he be placed with adoptive parents.
Sullivan also said he verifies for the record whether the guardian ad litem can represent both roles.
He said, “If I personally agree with the guardian ad litem’s professional assessments, I agree the GAL can represent both roles, and I put the facts on the record.”
In Blair County, Sullivan explained, the first step when a child is separated from his parents is to strive for reunification. That is achieved by having the parents reach certain goals.
If the parent fails to make progress, the next step is to attempt to place the child with a relative.
He said when parental rights are terminated, an agreement can be reached between the parent and the adoptive family to maintain contact, but he said the judge is not involved in that process.
He said while a post-adoptive contact agreements are possible, “We don’t see that in many cases.”