J-A07020-24

 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: K.A.E, A 

MINOR

APPEAL OF: J.R.G., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1405 MDA 2023

Appeal from the Decree Entered September 6, 2023

In the Court of Common Pleas of Luzerne County 

Orphans' Court at No(s): A-9477

BEFORE: STABILE, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY SULLIVAN, J.: FILED: APRIL 23, 2024

J.R.G. (“Father”) appeals from the decree involuntarily terminating his 

parental rights to K.A.E., born in November 2019 (“Child”).

1

 Father’s counsel 

has filed a petition to withdraw and an Anders brief.2 We are constrained to, 

deny counsel’s petition to withdraw, vacate the decree, and remand for further 

proceedings to determine whether Child’s legal counsel and guardian ad litem

(“GAL”) could represent Child’s best and legal interests without conflict. 

Given our disposition, we need not summarize the full factual and 

procedural history of this appeal. Briefly, in November 2021, Luzerne County 

Children and Youth Services (“CYS”) removed Child from Father’s and Mother’s 

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* Former Justice specially assigned to the Superior Court.

1 The trial court also terminated the parental right of A.M.S. (“Mother”), and

J.M. (“Putative Father”). Neither Mother nor Putative Father have appealed 

or participated in this appeal. 

2 See Anders v. California, 386 U.S. 738 (1967).
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home, obtained an emergency shelter care order, and placed Child in a kinship 

care home with Child’s paternal grandfather and his wife. Father had minimal, 

sporadic, contact with Child; provided no basic necessities for Child; did not 

stay in contact with CYS; and did not address domestic violence, substance 

abuse or mental health concerns. See Trial Court Opinion, 11/20/23, at 2, 5-

6, 10-11. 

In February 2023, CYS filed a petition to terminate Father’s parental 

rights. In March 2023, the trial court appointed Joseph Mashinski, Esquire 

(“Attorney Mashinski”), to represent Child as legal counsel and GAL. See

Order, 3/10/23, at 1 (“the March 2023 Order”). The March 2023 Order

contained the following provision:

Said attorney shall make an immediate determination if a conflict 

exists between the two roles [as Child’s legal counsel and GAL], 

and, if a conflict is determined to exist, said attorney shall notify 

the court and counsel of the determination and petition this court 

within ten (10) days of this order, seeking the appointment as 

legal counsel and the assignment of a [GAL]. 

Id. (some capitalization omitted). For reasons not apparent in the record, the 

trial court subsequently entered an order appointing Girard Joseph Mecadon, 

Esquire (“Attorney Mecadon”), as Child’s legal counsel and GAL. See Order, 

6/26/23, at 1 (“the June 2023 Order”).3 As in the March 2023 order, the June 

2023 Order contained the same provision directing Attorney Mecadon to 

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3 Although the record does not contain an order permitting Attorney Mashinski

to withdraw, Attorney Mashinski took no actions of record this matter and did 

not appear at the termination of parental rights hearings. 
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determine whether a conflict in his role as legal counsel and GAL existed, and, 

if a conflict existed, to notify the court and petition the court for the 

assignment of a separate GAL for Child. See id. 

The trial court held two days of hearings, the first in July 2023, and the 

second in September 2023.

4

 Child was three-and-a-half years old at the time 

of the first day of hearings. At the beginning of the first day of hearings, the 

trial court asked Attorney Mecadon whether he had “an opportunity to make 

an assessment as to whether there is any conflict of interest in [his] ability to 

represent both the best and legal interest of [Child.]” N.T., 7/6/23, at 4. The 

following exchange ensued:

[Attorney Mecadon]: Your Honor, I was not able to meet with 

[Child]. I just got appointed on the case. But from the 

information that I have, I don’t believe there is a conflict. 

THE COURT: Well, based on your answer, if we do move into the 

body of the case and you come to the conclusion that you feel 

there is a conflict of interest, I’m going to trust that you’re going 

to interrupt the proceedings and let me know about that. 

N.T., 7/6/23, at 4. The trial court made no additional findings of record 

establishing that Attorney Mecadon met with Child, Child was incapable of 

expressing a preference in the outcome of the case, or, if capable of stating a 

preference, Child’s preferred outcome did not conflict with Child’s best 

interests.

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4 Father was incarcerated but appeared for the first day of hearings. Although 

Father was released from prison before the second day of hearings, he did not 

appear in court for the second day of hearings. 
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On September 6, 2023, the trial court entered the decree terminating 

Father’s parental rights. Father filed a timely notice of appeal and a 

contemporaneous statement of errors complained of on appeal. The trial court 

filed a responsive opinion concluding that it properly terminated Father’s 

parental rights under section 2511(a)(1), (2), (5), (8), and (b). As noted 

above, Father’s counsel has petitioned to withdraw and filed an Anders brief.

This Court must first consider whether Father’s counsel has complied 

with the technical requirements to withdraw. See In re Adoption of B.G.S., 

240 A.3d 658, 661 (Pa. Super. 2020). Our review reveals that Father’s 

counsel has complied with the technical requirements for petitioning to 

withdraw. See id. (outlining the requirements for petitioning to withdraw 

pursuant to Anders); see also Petition for Leave to Withdraw as Counsel, 

12/21/23, at 1-2 and Attachment. Additionally, Father’s counsel has met the 

content requirements of an Anders brief and explains why counsel believes 

this appeal is wholly frivolous. See B.G.S., 240 A.3d at 661; see also

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Accordingly, 

we proceed to an independent review. See B.G.S., 240 A.3d at 661 (noting 

that once this Court determines that counsel has complied with the technical 

requirements to withdraw, we will conduct an independent review of the 

record to discern whether counsel overlooked any additional, non-frivolous 

issues).5

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5 Father has not responded to counsel’s petition to withdraw or filed a separate 

brief in this appeal. 
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Because our independent review reveals a non-frivolous issue

concerning Child’s right to counsel, we address that issue first. Cf. id.

Section 2313 of the Adoption Act states, in relevant part:

(a) Child.—The court shall appoint counsel to represent the child 

in an involuntary termination proceeding when the proceeding is 

being contested by one or both of the parents. The court may 

appoint counsel or a [GAL] to represent any child who has not 

reached the age of 18 years and is subject to any other proceeding 

under this part whenever it is in the best interests of the child. No 

attorney or law firm shall represent both the child and the 

adopting parent or parents.

23 Pa.C.S.A. § 2313(a).

This Court has articulated the relevant law as follows:

Our Supreme Court has explained that “[s]ection 2313(a)

requires the appointment of counsel who serves the child’s legal

interests in contested, involuntary [termination of parental rights]

proceedings.” In re Adoption of L.B.M., [] 161 A.3d 172, 180

([Pa.] 2017) (footnote omitted). Further, the L.B.M. Court held

that “the failure to appoint counsel for a child involved in a

contested, involuntary termination of parental rights proceeding 

is a structural error and is not subject to harmless error analysis.” 

Id. at 183. Further, the failure to appoint counsel to represent a 

child’s legal interests pursuant to [s]ection 2313(a) is a nonwaivable error. [See In re] T.S., 192 A.3d [1080,] 1087 [(Pa. 

2018)]. Subsequently, [our] Supreme Court clarified that “trial 

courts are obligated by [s]ection 2313(a) to appoint counsel to 

serve the critical role of a child’s attorney, zealously advocating 

for the legal interests of the child who otherwise would be denied 

a voice in the termination of parental rights proceedings.” In re 

Adoption of K.M.G., [] 240 A.3d 1218, 1233-34 ([Pa.] 2020) 

(citation omitted). In the context of TPR proceedings, the child’s 

“legal interests” is synonymous with “the child’s preferred 

outcome[.]” T.S., 192 A.3d at 1082 (footnote omitted)[.]

Further, “where a child’s legal and best interests do not

diverge in a termination proceeding, an attorney-GAL

representing the child’s best interests can also fulfill the role of

the attorney appointed per Section 2313(a) to represent the
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child’s legal interests.” T.S., 192 A.3d at 1088 (citation omitted).

However, “where there is no conflict between a child’s legal and

best interests, an attorney-[GAL] representing the child’s best 

interests can also represent the child’s legal interests. Id. at 

1092; see also K.M.G., 240 A.3d at 1235-36. As such, our 

Supreme Court has held that before appointing an individual to 

serve as both [GAL] and legal counsel for a child, the trial court 

“must determine whether counsel can represent the dual interests 

. . ..” K.M.G., 240 A.3d at 1236.

Further, where the trial court appoints one attorney “to 

represent both the child’s best interests and legal interests, 

appellate courts should review sua sponte whether the [trial] court 

made a determination that those interests did not conflict.” Id. 

at 1235.

Interest of H.H.N., 296 A.3d 1258, 1263-64 (Pa. Super. 2023) (some

citations omitted).

Our Supreme Court recognizes that a child may be too young to be able 

to express a preference as to the outcome of the proceedings. See T.S., 192 

A.3d at 1089-90.

6

 In such cases, a court may presume that no conflict exists 

between the child’s legal interest and best interest. See id. at 1090. Put 

differently, T.S. holds that section 2313(a) does not require the appointment 

of separate legal counsel to advance a child’s “unknowable preference.” Id.

(footnote omitted). 

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6

In T.S., the children were two and three years old, and the parties agreed 

that because of the children’s age, they could not have formed a subjective 

and articulable preference to be advanced by counsel during the termination 

proceedings. See T.S., 192 A.3d at 1089. We note that this Court has 

declined to apply the presumption in T.S. even where a child was as young as 

two years old at the time of the termination hearing. See Interest of S.Y., 

303 A.3d 760, 2023 WL 4590832, at *3 and n.3 (Pa. Super. 2023) 

(unpublished memorandum); see also Pa.R.A.P. 126(b) (stating that we may 

cite to unpublished memoranda filed after May 1, 2019 for persuasive value). 
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Our review of the record confirms that the trial court appointed an 

attorney as both legal counsel and GAL for Child. See Order, 6/26/23, at 1; 

Order, 3/10/23, at 1; K.M.G., 240 A.3d at 1235 (noting that an appellate 

court should engage in sua sponte review to determine if the trial court 

appointed counsel to represent the legal interest of a child in a contested 

termination proceeding). However, we must also consider, sua sponte,

whether the trial court determined that Child’s best and legal interests did not 

conflict. See K.M.G., 240 A.3d at 1236 (authorizing sua sponte review to 

determine whether the trial court, when appointing counsel who also serves 

as GAL, determined that a child’s best and legal interests did not conflict). 

Here, the trial court’s orders appointing Child’s counsel did not contain 

an express finding that Child’s best and legal interests did not conflict. See

Order, 6/26/23, at 1; Order, 3/10/23, at 1. To the contrary, the March 2023 

and June 2023 Orders apparently delegated to counsel the trial court’s

responsibility to determine if Child’s best and legal interests conflicted. See

Order, 6/26/23, at 1; Order, 3/10/23, at 1. Furthermore, at the first day of 

hearings, the court asked Attorney Mecadon whether he had the opportunity 

to assess whether he was able to represent both Child’s best and legal 

interests. See N.T., 7/6/23, at 4. Attorney Mecadon respond that he obtained 

information there was no conflict between Child’s best and legal interests, but

he had not yet met with Child. See id. At no point in the hearings, or 

elsewhere in the record, did the trial court expressly determine Child’s best 

and legal interests did not conflict. Cf. K.M.G., 240 A.3d at 1236.
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We acknowledge Child’s young age during the pendency of the 

termination of parental rights proceedings: Child was two years old when CYS 

removed her from Father’s and Mother’s care, just over three years old when 

CYS filed the petition to terminate Father’s parental rights, three-and-a-half 

years old at the time of the first day of the termination hearings, and nearing 

four years old at the time of the second day of the termination hearings.

7

 

However, there are no statements or findings on the record that Child was 

non-verbal or incapable of expressing a preference in the outcome. Therefore, 

we decline to apply the presumption in T.S. that Child could not have had a 

conflicting preference.

In sum, absent any indication that the trial court determined that Child’s 

best and legal interests did not conflict, we conclude that the court did not 

comply with section 2313(a). Cf. K.M.G., 240 A.3d at 1236. Accordingly, we 

deny Father’s counsel’s petition to withdraw, vacate the decree terminating 

Father’s parental rights, and remand this matter for the trial court to fulfill its 

section 2313(a) duty. The trial court shall determine on the record whether 

there is a conflict between Child’s best and legal interests. If there is a conflict, 

the trial court shall appoint separate counsel to represent Child’s best and 

legal interests and conduct a new termination hearing. If the trial court 

determines there is no conflict, the court shall re-enter its termination decree.

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7 The record suggests Child was speaking at the time of the second day of 

hearings. See N.T., 9/6/23, at 18 (indicating that Child “does ask” about 

Father). 
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Petition to withdraw denied. Decree vacated. Case remanded with 

instructions. Jurisdiction relinquished. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 04/23/2024