[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] [MO: Baer, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

IN RE: ADOPTION OF K.M.G.

APPEAL OF: T.L.G., MOTHER

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No. 55 WAP 2019

Appeal from the Order of the 

Superior Court entered September 

13, 2019 at No. 580 WDA 2018, 

affirming the Decree entered March 

5, 2018 in the Court of Common 

Pleas of McKean County at No. 42-

17-0239.

SUBMITTED: April 16, 2020

IN RE: ADOPTION OF: A.M.G.

APPEAL OF: T.L.G., MOTHER

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No. 56 WAP 2019

Appeal from the Order of the 

Superior Court entered September 

13, 2019 at No. 581 WDA 2018, 

affirming the Decree entered March 

5, 2018 in the Court of Common 

Pleas of McKean County at No. 42-

17-0240.

SUBMITTED: April 16, 2020

IN RE: ADOPTION OF S.A.G.

APPEAL OF: T.L.G., MOTHER

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No. 57 WAP 2019

Appeal from the Order of the 

Superior Court entered September 

13, 2019 at No. 582 WDA 2018, 

affirming the Decree entered March 

5, 2018 in the Court of Common 

Pleas of McKean County at No. 42-

17-0241.

SUBMITTED: April 16, 2020

IN RE: ADOPTION OF J.C.C.

APPEAL OF: T.L.G., MOTHER

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No. 58 WAP 2019

Appeal from the Order of the 

Superior Court entered September 

13, 2019 at No. 583 WDA 2018, 
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] [MO: Baer, J.] - 2

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affirming the Decree entered March 

5, 2018 in the Court of Common 

Pleas of McKean County at No. 42-

17-0242.

SUBMITTED: April 16, 2020

CONCURRING OPINION

JUSTICE DOUGHERTY DECIDED: NOVEMBER 10, 2020

I fully join the majority opinion, as well as the concurring opinion of Chief Justice 

Saylor. I write separately to underscore my respectful disagreement with certain notions 

expressed by Justice Wecht in his concurring and dissenting opinion. 

Though I agree, consistent with this Court’s prior jurisprudence, the right to 

representation of the child’s legal interests is a non-waivable right of the child which risks 

being irreversibly overlooked if counsel advances a child’s best interests without regard 

for the child’s preference, and I appreciate Justice Wecht’s effort to protect an interest 

courts have confronted with varying consistency in these sensitive proceedings, I 

nevertheless view his approach as problematic within the context of the legal 

representation of children, particularly in termination of parental rights proceedings.

My learned colleague correctly notes that “[e]ffective representation of a child 

requires, at a bare minimum, attempting to ascertain the client’s position and advocating 

in a manner designed to effectuate that position.” Concurring and Dissenting Opinion, slip 

op. at 15, quoting In re K.R., 200 A.3d 969, 986 (Pa. Super. 2018). Yet I disagree that our 

law requires an appellate court’s sua sponte scrutiny of the record in a termination of 

parental rights proceeding to determine the adequacy with which the child’s attorney 

demonstrated he fulfilled these duties. Apparently, we all recognize the discharge of those 

duties requires varying approaches and time commitments depending upon the unique 

needs, capacities, and willingness of the individual child in every case — and our law has 
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] [MO: Baer, J.] - 3

adopted no guidelines or standards with which to assess the adequacy of child’s 

counsel’s representation which, likewise, will necessarily vary with every individual case.

But I do not believe the absence of a ruling requiring the efforts of child’s counsel 

be placed on the record allows the child’s attorney to otherwise derogate his duties to his 

client. See id. at 16. While I would emphatically agree an attorney must not proceed with 

a conflict of interest through a hearing to involuntarily terminate a client’s parent’s rights, 

an attorney must not proceed with a conflict of interest at any time. An evidentiary hearing 

regarding the termination of a parent’s rights will generally not adequately reflect how any 

party’s counsel ascertained a client’s position. Counsel for a child, even if acting in a dual 

role as GAL, is not the court’s witness, but is bound by the court’s evidentiary rules, and 

as we have emphasized, owes a duty only to the child — the same duties of competence, 

zealous advocacy, and confidentiality as any other attorney’s duty to any other client.1

See In re T.S. 192 A.3d 1080, 1087 (Pa. 2018) (“The statutory right [to counsel] under 

Section 2313(a) belongs to the child, not the parent.”). As the non-moving party in this 

proceeding, the children’s attorney was charged with representing the children’s best and 

legal interests as he understood them; thus if, in his assessment, the evidence proffered 

by other parties sufficiently established a basis for the outcome consistent with his clients’ 

interests, a fair exercise of judgment would be to refrain from providing more. I thus view 

the proposed added layer of scrutiny of what counsel did not do in this case, the questions 

 

1

I emphasize, however, where the child’s attorney acting in a dual role receives 

information the child provided in confidence, which the attorney would otherwise use to 

advance the child’s interests in a manner at odds with the child’s preferences, it is 

unequivocally the imperative duty of the child’s attorney to inform the court of a conflict of 

interest and request separate appointment of a GAL. See Pa.R.P.C. 1.7. (“lawyer shall 

not represent a client if the representation involves a concurrent conflict of interest”); 

Pa.R.J.C.P. 1154 cmt. (“[T]he guardian ad litem for the child may move the court for 

appointment as legal counsel and assignment of a separate guardian ad litem when, for 

example, the information that the guardian ad litem possesses gives rise to the conflict 

and can be used to the detriment of the child.”).
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] [MO: Baer, J.] - 4

he did not ask, the witnesses he did not call, or the arguments he did not make, at a 

hearing in which he was not required to expound upon his efforts to adequately represent 

his clients, as a tenuous basis for reversal.

To the extent the concurring and dissenting opinion suggests the Adoption Act 

requires the child’s preferences to be factored into consideration of the “developmental, 

physical and emotional needs and welfare of the child” pursuant to Section 2511(b), see

Concurring and Dissenting Opinion, slip op. at 18 n.59 (quoting 23 Pa.C.S. §2511(b)), I 

caution courts and practitioners from equating these principles. Although this Court has 

developed that “the determination of the child’s ‘needs and welfare’ requires consideration 

of the emotional bonds between the parent and child[,]” In re T.S.M., 71 A.3d 251, 267 

(Pa. 2013) (emphasis added), we have not developed how the child’s “needs and welfare”

are served by their preferences. Indeed, the jurisprudence in this area more clearly 

indicates a recognition of children’s preferences and conflicting loyalties not serving their 

needs and welfare.2 See id. at 268, quoting In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super.

2008) (“Even the most abused of children will often harbor some positive emotion towards 

the abusive parent.”). I further caution against adopting such an equivalency where, as is 

the case here, some pieces of testimony, such as those related in the concurring and 

dissenting opinion, demonstrate witnesses observed the children expressing attachment 

to their mother, while yet other countervailing testimony by the same witnesses, not 

incorporated into that same analysis, also demonstrate evidence of a bond the children 

share with their pre-adoptive caregiver, and the harm the children suffered when their 

 

2 Additionally, I note that a showing of the “developmental, physical and emotional needs 

and welfare of the child” appears well within the ambit of the GAL’s function to inform the 

court of what “is best for the child’s care, protection, safety, and wholesome physical and 

mental development[,]” see Pa.R.J.C.P. 1154 cmt., and is therefore perhaps more 

appropriately considered within the context of a child’s best interests, rather than as a 

potentially conflicting preference.
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] [MO: Baer, J.] - 5

mother, who had unlimited ability to visit with the children, failed to call, show for visits, or 

otherwise remain in contact with the children for weeks at a time.3 Furthermore, by 

assimilating consideration of the child’s preferences within the grounds for involuntary 

termination under Section 2511(b), the rule proposed in the concurring and dissenting 

opinion would reassign the burden for proving the grounds are met from the party seeking 

termination — here, and in most cases, the county children and youth agency — to a nonmoving party whose duty is solely to the child. See, e.g., In re E.M., 620 A.2d 481, 484 

(Pa. 1993) (“[i]n a proceeding to involuntarily terminate parental rights, the burden of proof 

is upon the party seeking termination to establish by clear and convincing evidence the 

existence of grounds for doing so”). 

Consequently, while I am well aware of the problem — i.e., where a child’s attorney 

adds little evidence to the record, it may not be possible to discern from the record how 

the attorney advanced the child’s legal interests — I counter that requiring review of 

counsel’s efforts to ascertain the child’s wishes is not so simple, and scrutiny of the 

 

3 See, e.g., N.T., 2/18/2018 at 39 (“the kids have a really good bond with [their uncle]”), 

40 (referencing “mom’s lack of trying or lack of being involved”), 65 (“kids are happier 

[with their uncle]; they’re not as stressed out as they were [living with their mother]”), 67 

(Children “really bonded” to their uncle and his wife), 74 (mother’s “instability has caused 

a lot of distress on the part of the children . . . when they were expecting her to call and 

tell them good night she wouldn’t call or she wouldn’t show up for visits – it caused a lot 

of stress for the children – and that instability is just not a concern where they’re at [with 

uncle]”), 80 (mother’s contact sporadic despite caregiver’s open-door policy), 107 

(children thriving in environment they’re in and “fully bonded” with uncle and his wife; 

severing that bond would be more detrimental than severing parental bond with mother). 

In addition, I view consideration of any testimony from the children’s maternal 

grandmother, see Concurring and Dissenting Opinion at 6-7, or any characterization of it 

as “credited,” see id. at 23, as improper due to the orphans’ court’s rejection of that 

testimony. See Orphan’s Court Memorandum and Order dated 3/16/2018 at 7. 
[J-34A-2020, J-34B-2020, J-34C-2020 and J-34D-2020] [MO: Baer, J.] - 6

particular array of strategies used by child’s counsel should not controvert the focus of 

the proceeding.4 

 

4

I do not support “dispensing” with a requirement that counsel should make a record in a 

manner that suits the circumstance. See Concurring and Dissenting Opinion, slip op. at 

21 n.64 (Wecht, J.). Indeed, I join the majority’s opinion in full, including its recognition 

that, depending upon the circumstances, it may be a helpful practice for child’s counsel 

to place certain information on the record, which can aid appellate review. See Majority 

Opinion, slip op. at 27. I would not endorse the expansive review proposed by Justice 

Wecht in the absence of rule-making with regard to the representation of children in 

termination proceedings or legislative pronouncement statutorily incorporating such 

requirements into the proceeding under the Adoption Act.