In Re: P.G.F., Appeal of: K.F.

I
                             [J-91-2020] [MO: Todd, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


    IN RE: P.G.F                                :   No. 7 WAP 2020
                                                :
                                                :   Appeal from the Order of the
    APPEAL OF: K.F., NATURAL FATHER             :   Superior Court entered January 27,
                                                :   2020 at No. 1284 WDA 2019
                                                :   affirming the Order of the Court of
                                                :   Common Pleas of Bedford County
                                                :   entered August 7, 2019 at No. 3 AD
                                                :   2018
                                                :
                                                :   ARGUED: October 22, 2020


                                 DISSENTING OPINION


JUSTICE DONOHUE                                  DECIDED: MARCH 25, 2021

         I respectfully dissent. While I am in general agreement with Justice Wecht’s

dissenting opinion, I write separately to highlight the record evidence of the legal

representation afforded to this child (“Child”) whose life will be forever impacted by this

proceeding terminating the parental rights of his biological father (“Father”).1 Although

the Majority blesses the appointed guardian ad litem/legal counsel’s (“Counsel”)

representation of Child’s legal interest, the Majority never supports its conclusion with




1 My analysis of the issues is based on the record of the case on remand to the Orphans’
Court from the Superior Court where the sole issue was Counsel’s determination of
whether Child’s legal and best interests were aligned or in conflict. See N.T., 8/7/2019,
at 1-25. The record on remand, detailing Counsel’s testimony, with ten pages of
interjection by the trial judge, runs for a total of only twenty-five pages including the
recitation into the record by the trial judge of Counsel’s summary of her twenty-minute
interview with the client on June 10, 2019. Child was one month shy of seven years old
at the time of Counsel’s consultation.

Id. at 11.

citation to the record. The result of this varnished analysis is to elevate Counsel’s

unwillingness or inability to communicate information to her client over compliance with

her responsibilities under the Rules of Professional Conduct, thus enshrining subpar

representation as the norm for children in termination of parental rights proceedings.

       It is beyond dispute that in the view of Counsel, her conclusion as to her client’s

preference as to the outcome of the termination proceedings, i.e., his legal interest,

hinged on his preferred living arrangement. On examination by Father’s attorney to probe

Counsel’s conclusion that she did not have a conflict representing both Child’s best

interests and legal interests, the following information was elicited:

              Mr. Kelleher:     … [Counsel], do you think the child was able
                                to express his preferred outcome or do you
                                believe he was incapable of expressing that
                                with him not knowing what permanent
                                adoption even means?


              Counsel:          Well, I explained to him what adoption
                                meant, that his daddy, [Stepfather] would
                                become his daddy under the law. It would
                                not change his concern that he wouldn’t be
                                able to live with his mommy. I said, well, I
                                didn’t want to go too far with him because I
                                didn’t want him to think that something would
                                happen between his mommy and daddy and
                                he would lose them. So, I was trying to be
                                very cautious with him, but I said, if
                                something would happen between his
                                mommy and daddy that he would live with
                                one of them. So, he would always, he would
                                always have contact with the other I hoped,
                                anyways. Because he was concerned that
                                he would be taken from his mommy and
                                daddy.

                                          *          *             *




                              [J-91-2020] [MO: Todd, J.] - 2
              Mr. Kelleher:    Do you believe that Child was able to
                               express his preferred outcome at the time of
                               the interview?

              Counsel:         Yes.

              Mr. Kelleher:    … Do you agree that he understood what he
                               was trying to determine?

              Counsel:         I think Child understood that he wanted to
                               live with his mommy and daddy. And I asked
                               him several, numerous times during the
                               interview. Obviously mommy wasn’t an
                               issue, but I asked him numerous time [sic]
                               during the interview who daddy was. And he
                               always said [Stepfather].

N.T., 8/7/2019, at 8-9.

       As the record further establishes, counsel saw the termination proceeding as

creating a binary option for Child’s consideration, and one of the two options was one she

was unwilling to present to Child.

              Mr. Kelleher:    So preferred outcome only involved -- there
                               wasn’t two options would you agree with
                               that?

              Counsel:         Right, but I think, I think Judge Ling said it
                               extremely well, I don’t believe -- I was not
                               able to say to Child that [Father] is his
                               biological father and that’s and [sic] option. If
                               you want to live with your biological father
                               who is not [Stepfather], then that’s an option.
                               I don’t think I have the authority or the right
                               to say that to him because he, Child, did not
                               understand that. Like, Child did not
                               understand that [Stepfather] was not his
                               daddy.[2] …

2 Earlier in her testimony, Counsel stated that Child never called Stepfather “Daddy” until
June 10, 2019 (the day of her interview with her client). According to Child, he always
called Stepfather by a shortened version of his first name before that date. N.T., 8/7/2019,
at 12. Child referred to Stepfather’s parents as “Mr. and Mrs. [H.]”

Id. at 5

(After
identifying his maternal and paternal grandparents by affectionate names, “I questioned



                              [J-91-2020] [MO: Todd, J.] - 3


Id. at 16-17.

       This record establishes that Child was given a fundamentally flawed view of the

outcome of the termination proceeding. If Father’s parental rights were not terminated,

there was no basis to allow Child to fear that he could no longer live with Mother and her

husband, Stepfather, or that Stepfather would have to forego acting in a parental role as

he purportedly had been doing. Assuming that in the future the biological father sought

custody rights, another court would design the parameters taking into account Child’s

needs.

       Moreover, while counsel was focused on the maintenance of the existing custodial

relationship between Child and his mother and stepfather, it is troubling that in articulating

his preferred outcome of the termination proceeding, Child’s known and articulated

preference for a relationship with his “Grammy” (Father’s mother) was unprotected when

his preference for termination was placed on the record. My colleague, Justice Wecht, in

dissent, thoroughly articulates the unsettled state of the law on the effect of termination

of a parent’s rights on the grandparents whose interests flow from that parent. Wecht

Dissenting Op. at 2 n.1. Counsel had a responsibility to consider the state of the law and

its effect on Child’s preferred outcome of having a relationship with Father’s mother. The

sum total of her articulated consideration of Child’s preference and his sadness about not

seeing his Grammy: “[W]hat do I do with that information?” N.T., 8/7/2019, at 17.

Acknowledging that she could not tell Mother what to do, she concluded, “so is life fair?

No.”

Id. at 18.

Given Child’s known preference and that a potential outcome of the


him about his daddy’s parents and what he called them, his response was ‘Mr. and Mrs.
[H.]’”).


                               [J-91-2020] [MO: Todd, J.] - 4
termination was that Father’s mother would not be able to have a relationship with him, it

is very difficult to support the view that Child’s preference was for the termination of

Father’s parental rights.

       Because the record is silent on the actual information about the termination

proceeding that counsel gave to Child, we can only assume that the entirety of her

explanation was based on the impact the proceedings would have on his living

arrangements.    This conclusion is based not only on her specific response to the

questions regarding the basis for Child’s preferred outcome as previously described, but

also on her articulated view that conveying information to her client about the actual

purpose and outcome of the proceeding was not her responsibility. Counsel testified:

              … And when he [(Child)] told me that he didn’t know who
              [Father] was, do I tell him, well -- I would have to explain to
              him why [Father] wasn’t in his life and I don’t think I have any
              right to say, well, because it would be my opinion from the
              testimony, I guess. I would have to say, “Mommy kept Daddy
              away from you.” And I’m not going to destroy these kids that
              I’m guardian of. I don’t think that’s my job. I really don’t .

Id.

There are multiple

levels of problems with this recitation. First, why Father is not

currently in Child’s life was not an overarching consideration. If relevant, there are ways

to explain the situation other than making Mother (or anyone else) the villain.3 What was

relevant to Child’s understanding of the proceeding was that there is another person who



3  Counsel candidly testified that in her view, Mother kept Child away from his biological
father and that Mother was being rewarded for her conduct. N.T., 8/7/2019, at 12. She
believed that it was in Child’s best interest for Father’s rights to be terminated because
case law required Father to take steps to stop Mother’s obstruction and he failed to do
so.

Id.

[J-91-2020] [MO: Todd,

J.] - 5
has an interest in being a part of his life, and the outcome of the proceeding will prevent

him from doing so. Second, Counsel’s only attempt to describe this other person with an

interest in him was to ask Child if he remembered a “[Father’s name]”4 from visits with his

Grammy. (“Mr. Kelleher: Did you ask, did you do it without using a name? Was anybody

else that ever came over to Grammy’s house? Was there any guys there? Any males

there? Counsel: No.” N.T., 8/7/2019, at 19.) It is entirely possible that Child remembered

the nice man who spent time with him at Grammy’s house. The limitations of Counsel’s

ability to communicate with Child left that avenue of inquiry untouched. From this record,

it is not possible to determine whether Child had a recollection, fond or otherwise, of his

biological father.

       The Majority recognizes that in certain cases, an expert in child psychology will be

warranted to assist counsel in communicating with a child in a termination proceeding,

but concludes that this is not such a case. Given this record, to me, this is precisely a

case that warrants the assistance of an expert. Most concerning about the opinion of

Counsel was her view that the only way to describe the legal proceeding to Child in order

to elicit his preference was to do it in a way (“Mommy kept Daddy away from you”) that

would “destroy” him. Given her proposed delivery of the information, she was likely

correct in her assessment, but it was based on the faulty premise that this malignant

approach was the correct and only way to convey the information. As a result, Child was

given misinformation about the nature of the proceeding, because he was guided by




4 Mother insisted that as a condition of paternal grandmother’s continued contact with
Child, she could not allow him to refer to Father as dad. N.T., 8/7/2019, at 19.


                              [J-91-2020] [MO: Todd, J.] - 6
Counsel who believed it was not her job to explain it to him and because she was

incapable of devising an age appropriate way of conveying accurate information.

       The Majority concludes that “under the unique circumstances of this case,” counsel

adequately discharged her responsibilities as legal counsel. Majority Op. at 17. In

summary, the Majority blesses the representation by an attorney representing a child in

a termination proceeding who misstated the consequences of the proceeding; who

refused to provide accurate information about the nature of the proceeding based on her

conclusion that the only way to do so is by blaming the child’s mother for the situation;

who apparently was unable or unwilling to probe the child’s knowledge of biological father

in any way other than to reference his given name; who failed to take into account the

child’s preference for a relationship with Father’s mother; and who failed to recognize that

the involvement of an expert in child counseling was warranted.5 With due respect to the

learned Majority, in my view, its conclusion is at odds with the Rules of Professional

Conduct governing lawyers in Pennsylvania. Regarding communications with clients by

an attorney, R.P.C. 1.4(b) provides:

              Ordinarily, the information to be provided is that appropriate
              for a client who is a comprehending and responsible adult.
              However, fully informing the client according to this standard
              may be impracticable, for example, where the client is a child
              or suffers from diminished capacity. See Rule 1.14. …



5  The record establishes that Child preferred to continue living with his mother and
stepfather. That tells us nothing about Child’s preference about the outcome of the
termination proceeding. If the record supported the view expressed by the Majority that
Child was, by way of age and emotional development, unable to comprehend the nature
of the proceedings and the factual circumstances surrounding it, see Majority Op. at 17,
the correct determination is that Child was unable to state a preference. His legal and
best interests coincided and counsel had no conflict. Compare In re Adoption of C.J.A.,

204 A.3d 497

(Pa. Super. 2019). This was not the conclusion reached by Child’s Counsel.


                              [J-91-2020] [MO: Todd, J.] - 7
      In turn, Rule 1.14(a) provides:

             When a client’s capacity to make adequately considered
             decisions in connection with a representation is diminished,
             whether because of minority, mental impairment or for some
             other reason, the lawyer shall, as far as reasonably possible,
             maintain a normal client-lawyer relationship with the client.

      Comment [1] to Rule 1.14 recognizes that in such cases, maintaining the ordinary

attorney-client relationship may not be possible in all respects. A client with diminished

capacity, a term that is used interchangeably with minority, often has the ability to

understand, deliberate upon and reach conclusions about matters affecting the client’s

own wellbeing. To illustrate, the comment specifically references that children “as young

as five or six and certainly those of ten or twelve” have opinions entitled to weight in

custody proceedings.

      Finally, Comment [6] to Rule 1.14 gives guidance to lawyers in determining the

extent of the client’s diminished capacity (a term that encompasses minority):

             … the lawyer should consider and balance such factors as:
             the client’s ability to articulate reasoning leading to a decision,
             variability of state of mind and ability to appreciate
             consequences of a decision; the substantive fairness of a
             decision; and the consistency of a decision with the known
             long-term commitments and values of the client.                  In
             appropriate circumstances, the lawyer may seek guidance
             from an appropriate diagnostician.

      The rules make clear that an attorney representing a child has the responsibility to

communicate information that is necessary to effectuate the representation.         Here,

Counsel to Child had the obligation to give him the information necessary for him to

express his preference in the outcome of the proceeding that was brought to terminate

his biological father’s parental rights. The rules recognize that children are not the

equivalent of competent adults in their ability to comprehend and process information.



                              [J-91-2020] [MO: Todd, J.] - 8
Likewise, all children are not alike. Depending on age and mental development, some

may be more able to process information than others. In termination of parental rights

cases, it is incumbent on legal counsel to determine the extent of her client’s ability to

comprehend and process information. Rule 1.14 provides guidance on the types of

factors that need to be considered and balanced when counsel makes a determination

as to the child’s ability to make a decision — here, stating a preference as to the outcome

of the termination of parental rights proceeding.       These factors are not, of course,

exclusive of other considerations that might give insight into a child’s ability to understand

and accept information.

       Here, Child’s ability to comprehend and process the information required to state

a preference was never assessed. The determination that he could state a preference

was made by Counsel after she decided that she was not going to communicate relevant

information to him because he did not remember a man with Father’s name and she had

no intention of otherwise explaining how the proceeding would affect him because of his

mother’s role in his biological father’s absence from his life. Conveying this information,

in the most brutal possible way, was not in Child’s best interests according to his legal

counsel. N.T., 8/7/2019, at 12-13. Ignoring for the moment that the choice of messaging

is the problem, this conflates the dual roles of her appointment. In fact, Counsel’s

determination of Child’s best interest was the basis for her decision to withhold relevant

information from him. Compare N.T., 8/7/2019, at 12, with N.T., 8/7/2019, at 8-9.

       It is impossible from the record to discern whether Child had the maturity and

attendant ability to comprehend truthful information about his biological parentage and

the effect of the termination proceeding. Because Counsel’s ability to communicate




                               [J-91-2020] [MO: Todd, J.] - 9
information to the client was obviously limited, a skilled child counsellor should have been

engaged to assist in making the determination as to Child’s ability, first to comprehend

information and if so able, to state a preference. To me, it is not possible for this child to

have articulated a preference when he was not given the basic information he needed to

make a decision.

       Counsel has an obligation to consider the information that needs to be conveyed

and how to convey it. Unless the determination is first made that a child does not have

the maturity and emotional capacity to entertain accurate information delivered in an age

appropriate manner, an attorney has no authority to withhold information from the client.

Rule 1.4, Comment [7] (Withholding Information) recognizes that a lawyer may be justified

in delaying transmission of information when the client would be “likely to react

imprudently to an immediate communication.” It does not authorize delaying transmission

of information in other circumstances. The rules do not allow withholding information

when no cogent attempt was made to convey the information so that any negative

consequence could be accurately assessed.            Counsel to a child in a termination

proceeding can only withhold information if a child is determined to be incapable of

understanding the nature and consequences of the proceeding based on the child’s age

and emotional maturity. Essential to this determination is an attempt to provide accurate

information about the proceeding and its consequences. If the determination is made

that the child is incapable of comprehending the information, counsel is then free to

withhold the information and to determine that the child’s legal and best interests coincide.

       In this case, Counsel concluded, before attempting to ascertain Child’s ability to

process accurate, non-inflammatory information about the termination of parental rights




                              [J-91-2020] [MO: Todd, J.] - 10
proceeding, that it was not in his best interests to receive the information necessary to

articulate his preference in the outcome. The record does not support a conclusion that

Child had the advice of counsel necessary to articulate a preference as to the outcome

of this proceeding. Moreover, given Counsel’s knowledge of Child’s preference for a

relationship with his paternal grandmother and the unsettled state of the law regarding

the impact of termination of Father’s rights on grandmother’s legal relationship with Child,

I conclude that Counsel’s articulation of Child’s preference for termination of Father’s

rights is contradicted by the record. I would remand to the Orphans’ Court to reconsider

the termination of Father’s parental rights in light of Child’s preference to maintain the

paternal familial relationship. But for this record evidence of Child’s preference, I would

remand to the Orphans’ Court for appointment of separate legal counsel to engage an

appropriate expert in child psychology or counseling if new counsel finds it necessary to

aid in determining Child’s ability to state a preference and otherwise assist in adequately

communicating the information necessary to do so.

       Justice Wecht joins this dissenting opinion.




                             [J-91-2020] [MO: Todd, J.] - 11

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