Adoption of A.M.G.; Apl of: T.L.G. (concurring)
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[J-34A-2020][M.O. - Baer, J.] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT 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. 55 WAP 2019 : : : : : : : : : No. 56 WAP 2019 : : : : : : : : : No. 57 WAP 2019 : : : : : : : : : No. 58 WAP 2019 Appeal from the Order of the Superior 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 Appeal from the Order of the Superior 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 Appeal from the Order of the Superior 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 Appeal from the Order of the Superior 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 These 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). 1 [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. [J-34A-D-2020][M.O. – Baer, J.] - 3
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