Lawyers

Courtroom OKs termination of rights


The Pennsylvania Su­­preme Court has upheld the termination of parental rights of a Bedford County man, but the 5-2 decision issued March 26 raised several questions that remain to be answered.

The state’s highest court was reviewing a case in which a father was challenging a decision by Bedford County Common Pleas Court Judge Thomas S. Ling to terminate his parental rights.

The father and mother broke off their relationship shortly after their child’s birth eight years ago.

For three years, the father maintained contact with the child and paid support, but the mother married and she and the boy’s stepfather petitioned the court to terminate the rights of the natural father so the stepfather could adopt the child.

For the past four years, Pennsylvania’s appeals courts have required — under the Pennsylvania Adoption Act — that a separate attorney be appointed for the child in termination cases to make sure he or she has a voice in the judge’s eventual decision.

The attorney is to represent the child’s “legal interests” as opposed to the court-appointed Guardian Ad Litem — the attorney assigned to consider the “best interests” of the child.

If there is no difference between a child’s legal interest and best interest, Pennsylvania courts have permitted one lawyer to fulfill both roles.

But in the Bedford County case, the appointment of Bedford attorney Carol Ann Rose to fill both roles became a matter of dispute due to a unique circumstance.

The boy did not know his birth father.

He and the father’s mother (the boy’s grandmother) had a close relationship, but he knew his father only as “Grammy’s friend.”

According to the Supreme Court opinion issued last week, attorney Rose, in representing the boy’s legal interests, did not feel it was part of her role to reveal to the child that his grandmother’s “friend” is in fact his birth father.

In her assessment of the boy’s legal interest, she determined the boy was content and wanted to remain with his mother and stepfather.

The Pennsylvania Superior Court, in a 2-1 decision, upheld Judge Ling’s decision to terminate the father’s parental rights, but in a scathing dissent, Superior Court Judge Mary Janes Bowes stated, “While attorney Rose’s desire to exercise her authority judiciously is laudable, it is a misstatement of law for her to say that she has no right to disclose family confidences.”

Bowes stated Rose should have given the child the facts to articulate whether he wanted to permanently sever his relationship with the man who is his father.

The father appealed to the Supreme Court and the Friday decision brought about another split decision.

The opinion upholding termination was written by Justice Debra Todd. That opinion was joined by Chief Justice Thomas G. Saylor and Justices Max Baer, Sallie Updyke Mundy and Kevin Dougherty.

Justices Christine Donohue and David Wecht each filed dissenting opinions.

The majority concluded that the Bedford County case was unique and determined, “There may be circumstances surrounding a termination proceeding that hamper a child’s clear preference. This case is a good example.”

“The child,” it pointed out, “is unaware of certain sensitive facts and could be emotionally harmed if informed of such facts. … We believe caution and reflection is not only acceptable, but required.”

The majority opinion went on to state, “We will not mandate that an attorney convey highly sensitive, significant and potentially emotionally damaging information to a child, or engage in raw inquiry, merely to discern the clearest indication of a child’s preference. That would be unfair to the child and to the attorney. Attorneys are not therapists or child psychologists.”

In dissent, Justice Wecht stated, “The gravity of terminating a child’s relationship with a parent and with a parent’s family is difficult to overstate.”

He concluded that to permit an attorney to withhold vital information from a child “defeats and destroys that child’s voice and role in the process.”

Justice Donohue stated the child’s attorney “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.”

She recommended the case be sent back to Bedford County for further hearing.

In their dissents, both judges raised issues that eventually will have to be addressed in future opinions.

Justice Wecht noted the child had a close relationship with his grandmother. He stated the rights of a grandmother or other family members who have close relationships with the child represented an “unsettled” issue.

And Donohue indicated that in such unique cases, an “appropriate expert” in child psychology should be brought into the picture to recommend how to deal with such sensitive information raised in termination cases.

In a footnote to the opinion, the Supreme Court pointed out it received friend-of-the-court briefs from the Juvenile Law Center, Community Legal Services and 16 national, state or local organizations supporting the father.

Other organizations, like KidsVoice, the Defender Association of Philadelphia, the Montgomery County Child Advocacy Project and several professionals indicated in brief that they felt … “the disclosure of the father’s identity would have a significant and lasting effect on the child and such disclosure should not come from child’s counsel.”

They recommended that such disclosure should come “over a period of time, guided by a clinician, a close family member or some other person whom the child trusts.”



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