L.B.M. Opinion - Reversal

(1)     The statutory language is unambiguous that, in a contested TPR, the court must appoint client-directed counsel for the child. ("[W]hen a child’s relationship with his or her birth family could be severed permanently and against the wishes of the parents, the legislature 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.")  The opinion includes a nice recognition that "appointment of client-directed counsel optimizes the protection of the child’s needs and welfare, which form the ultimate issue that the trial court must resolve before granting the TPR."

(2)     The GAL, who has served as best interests counsel throughout the dependency proceeding, cannot serve the role of client-directed counsel, regardless of cost, delay, or the child’s ability to express his or her interest. Footnote 14 makes the point that courts cannot rely on the GAL to withdraw as legal counsel in the event of a conflict, because that "would make the GAL the arbiter of the child’s right to counsel. That right belongs to the child.  That child generally is not in a position to assert, much less advocate, the presence of a conflict of interest."

A majority of the Court does not agree that the GAL can never serve as client-directed counsel, as addressed in the concurring and dissenting opinions.

(3)     Failure to appoint counsel was structural error.  The opinion cites to our amicus brief and John’s thoughtful analysis applying the protections afforded in criminal cases to TPR hearings.
 
Justice Saylor wrote a concurring opinion, which Justice Todd joined, disagreeing that the GAL can never serve as client-directed counsel.  Justice Saylor would hold that whether the GAL can serve as legal counsel should be determined by the court on a case-by-case basis and that and that the court should appoint new counsel to represent the child’s legal interests in the event of a conflict.  In this case, however, the court did not conduct a conflict inquiry, requiring reversal.
 
Justices Baer and Mundy each wrote separate dissenting opinions and joined the other’s opinion.  Justice Baer would apply the hybrid best interest/legal interest GAL role provided for in the Juvenile Act.  If a conflict arises, the GAL must move for appointment of additional counsel to represent either the child’s best interests or legal interests.  Baer does agree that the statute requires appointment of counsel to represent the child’s legal interest in contested termination hearings and that failure to appoint legal counsel is structural error.  However, according to Justice Baer, the record here does not support a conflict that would have required the court to appoint separate counsel to represent the children’s legal interest.
 
Justice Mundy’s dissent stated that the statutory requirement that counsel be appointed is satisfied by appointment of a GAL who is an attorney.  Justice Mundy declines to find a difference between the child’s best and legal interests.  To the extent the two positions conflict, Mundy would leave it to the GAL to seek appointment of separate counsel.