J-A06023-18

2018 PA Super 182

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* Retired Senior Judge assigned to the Superior Court.

IN RE: J’K.M., A MINOR

APPEAL OF: A.M., NATURAL 

MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1390 WDA 2017

Appeal from the Order Entered August 24, 2017

In the Court of Common Pleas of Allegheny County Family Court at No(s): 

CP-02-DP-0000208-2016

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.

OPINION BY SHOGAN, J.: FILED JUNE 26, 2018

A.M. (“Mother”), the natural mother of J’K.M. (“Child”), appeals from 

the order entered on August 24, 2017, denying Mother’s motion for the 

appointment of a separate guardian ad litem (“GAL”), to represent Child’s

best interests in the underlying dependency proceedings.

1 After careful 

review, we reverse and remand for the trial court to appoint a GAL to 

represent Child’s best interests and Child’s current GAL shall act as counsel 

representing Child’s legal interests.

The trial court set forth the relevant facts and procedural history of 

this matter as follows:

____________________________________________

1 We are satisfied that, although the order in question is not a final order, we 

have jurisdiction, and this appeal is properly before our Court as an appeal 

from a collateral order pursuant to Pa.R.A.P. 313(b).
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[Child] is a 16 year old girl[2] who had previously been 

declared dependent[3] but remained in the care of [M]other.

[Child has, at times, been placed in foster care. Order, 4/18/16; 

Order 7/27/17.] [Child] has a history of serious health 

problems, specifically asthma that requires close medical 

supervision. On a number of occasions [M]other and [Child] both 

neglected the appropriate medication to control [Child’s] asthma. 

As a result of this neglect [Child] was required to be hospitalized 

on a number of occasions. Additionally, after said 

hospitalizations doctor[‘s] appointments have been scheduled for 

[Child] to monitor and follow up on her treatment. Once again, 

[M]other and [Child] more than once failed to attend these 

appointments. As a result of the failure to appreciate the 

seriousness of [Child’s] asthma and the impact on her health she 

has been hospitalized on more than one occasion. The

caseworker testified that there is family history of serious 

asthma complications including the death of [Child’s] father as 

asthma related.

In addition to the health concerns, testimony was set forth 

at a Permanency Review Hearing on June 19, 2017 before 

Hearing Officer Hobson that [Child] often stays away from home 

for multiple nights with either friends or her boyfriend.

Specifically, at the time of the hearing [Child] had been staying 

with her boyfriend because of a fight she had with [M]other.

Prior to the Permanency Review Hearing Attorney Engle 

was appointed both as Attorney for [Child], as well as Guardian 

Ad Litem for [Child].

During the Permanency Review Hearing testimony was 

presented by [M]other who confirmed that she had missed 

meetings and indicated that she had a “full plate” with her other 

children and sometimes had difficulties making all medical

appointments. [Child] also testified and indicated that she 

____________________________________________

2 Child turned seventeen in March of 2018.

3 Child was adjudicated dependent pursuant to 42 Pa.C.S. § 6302(1), as she 

was “without proper care or control, subsistence, education as required by 

law, or other care or control necessary for his physical, mental, or emotional 

health, or morals.” Order, 4/18/16. 
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wanted to be in charge of her medical treatment but understood 

at age 16 she was unable to do so. That being said, [Child] was 

allowed to fully testify by Attorney Engle and she fully set her 

position that she wished to return home to [M]other. [Child] did 

not like living in foster care because she was made to follow a 

more structured schedule with things such as eating meals, 

sleep times and attendance of school. At the conclusion of the 

testimony Attorney Engle, in the role as Counsel for [Child] set 

forth [C]hild’s legal interests which is the expression of the 

child’s wishes. Attorney Engle set forth that [C]hild’s testimony 

was clear both as to her reasoning to go home to live with 

[M]other and her desire to remain with [M]other.[4] Attorney 

Engle then acting as Guardian Ad Litem was required to set forth 

the appropriate Guardian Ad Litem opinion as to the best interest 

for [Child]. This Opinion was based upon the on-going

hospitalizations of [Child], [M]other’s failure to attend medical 

appointments, [and Child’s] failure to attend medical 

appointments as well as truancy issues[;] [these factors] caused 

the Guardian Ad Litem to opine that [Child] should be removed 

from the home.

It was at this point counsel for [M]other objected and 

asked for the appointment of a separate Guardian Ad Litem. ...

Counsel for [M]other filed what was entitled a Motion For 

Appointment For Separate Guardian Ad Litem. While this Court 

____________________________________________

4 As a point of clarification, the trial court states that Child “wished to return 

home to [M]other” and was clear “as to her reasoning to go home to live 

with [M]other.” Trial Court Opinion, 11/20/2017, at 2. Later in its opinion, 

the trial court states that Attorney Engle “set forth reservations as to the 

return of [Child] to [M]other.” Id. at 5. However, the record indicates that 

Mother had physical custody of Child at the time of the June 2017 hearing. 

See Permanency Review Order (Non-Placement) – Amended, 6/19/2017, at 

2. Thus, Child was living with Mother, although Child admitted that she was 

spending three to four nights a week away from Mother’s home. N.T., 

6/19/2017, at 49. Child testified that she wanted to keep living with Mother 

and did not wish to return to foster care. N.T., 6/19/2017, at 52. Attorney 

Engle, on the other hand, stated his belief that it was in Child’s best interest 

to be removed from Mother’s home but did not specify where Child should 

be placed. 
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believes such Motion was incorrectly titled, the Court treated the 

Motion [as] a Motion To Disqualify Attorney Engle as Guardian 

Ad Litem due to conflict of interest.

A hearing was conducted before this Court on the Motion 

at which time all parties stipulated to the transcript of the 

proceedings before Hearing Officer Hobson. No further testimony 

or any factual evidence was presented at the time of this Motion. 

After hearing the legal arguments of all parties this Court denied 

the request to appoint a separate Guardian Ad Litem. 

Trial Court Opinion, 11/20/17, at 1-3.

On September 25, 2017, Mother filed a timely notice of appeal.5 Both 

Mother and the trial court complied with Pa.R.A.P. 1925.

On appeal, Mother raises the following issue for this Court’s 

consideration:

Does a conflict of interest arise when a child expressly states 

their preferred outcome and the GAL attorney advocates for 

another?

Mother’s Brief at 6 (full capitalization omitted).

Review in dependency cases requires an appellate court to accept the 

findings of fact and credibility determinations of the trial court if they are 

supported by the record, but it does not require the appellate court to accept 

the lower court’s inferences or conclusions of law. In Interest of J.P., 178 

____________________________________________

5 The thirtieth day after the entry of the August 24, 2017 order fell on 

Saturday, September 23, 2017. See Pa.R.A.P. 903(a) (generally, the notice 

of appeal must be filed within thirty days after the entry of the order from 

which the appeal is taken). Accordingly, Mother had until Monday, 

September 25, 2017, to file a timely notice of appeal. See 1 Pa.C.S. § 1908 

(when the last day of a given time period in a statute falls on a Saturday, 

Sunday, or legal holiday, such day shall be omitted from the computation).
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A.3d 861, 864 (Pa. Super. 2018). Accordingly, we review the trial court’s 

decision under an abuse-of-discretion standard. Id.

Necessary to our discussion of Mother’s issue are two Pennsylvania 

Rules of Juvenile Court Procedure and one section of the Juvenile Act, 42 

Pa.C.S. §§ 6301-6375. Rule 1151 of the Pennsylvania Rules of Juvenile 

Court Procedure provides, in relevant part:

Assignment of Guardian Ad Litem & Counsel

A. Guardian ad litem for child. The court shall assign a 

guardian ad litem to represent the legal interests and the best 

interests of the child if a proceeding has been commenced 

pursuant to Rule 1200 alleging a child to be dependent who:

(1) is without proper parental care or control,

subsistence, education as required by law, or other 

care or control necessary for the physical, mental or 

emotional health, or morals;

* * *

B. Counsel for child. The court shall appoint legal counsel for a 

child:

(1) if a proceeding has been commenced pursuant to 

Rule 1200 alleging a child to be dependent who:

(a) while subject to compulsory school 

attendance is habitually and without 

justification truant from school;

(b) has committed a specific act or acts 

of habitual disobedience of the 

reasonable and lawful commands of the 

child’s guardian and who is ungovernable 

and found to be in need of care, 

treatment, or supervision;
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(c) is under the age of ten years and has 

committed a delinquent act;

(d) has been formerly adjudicated 

dependent, and is under the jurisdiction 

of the court, subject to its conditions or 

placements and who commits an act 

which is defined as ungovernable in 

paragraph (B)(1)(b);

(e) has been referred pursuant to section 

6323 (relating to informal adjustment), 

and who commits an act which is defined 

as ungovernable in paragraph (B)(1)(b); 

or

(f) has filed a motion for resumption of 

jurisdiction pursuant to Rule 1634; or

(2) upon order of the court.

C. Counsel and Guardian ad litem for child. If a child has 

legal counsel and a guardian ad litem, counsel shall represent 

the legal interests of the child and the guardian ad litem shall 

represent the best interests of the child.

Pa.R.J.C.P. 1151(A)-(C). Rule 1154 provides:

Duties of Guardian Ad Litem

A guardian ad litem shall:

(1) Meet with the child as soon as possible following assignment 

pursuant to Rule 1151 and on a regular basis thereafter in a 

manner appropriate to the child’s age and maturity;

(2) On a timely basis, be given access to relevant court and 

county agency records, reports of examination of the guardians 

or the child, and medical, psychological, and school records;

(3) Participate in all proceedings, including hearings before 

juvenile court hearing officers, and administrative hearings and 

reviews to the degree necessary to adequately represent the 

child;
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(4) Conduct such further investigation necessary to ascertain the 

facts;

(5) Interview potential witnesses, including the child’s guardians, 

caretakers, and foster parents, examine and cross-examine 

witnesses, and present witnesses and evidence necessary to 

protect the best interests of the child;

(6) At the earliest possible date, be advised by the county 

agency having legal custody of the child of:

(a) any plan to relocate the child or modify custody 

or visitation arrangements, including the reasons, 

prior to the relocation or change in custody or 

visitation; and

(b) any proceeding, investigation, or hearing under 

the Child Protective Services Law, 23 Pa.C.S. § 6301 

et seq. or the Juvenile Act, 42 Pa.C.S. § 6301 et 

seq., directly affecting the child;

(7) Make any specific recommendations to the court relating to 

the appropriateness and safety of the child’s placement and 

services necessary to address the child’s needs and safety, 

including the child’s educational, health care, and disability 

needs;

(8) Explain the proceedings to the child to the extent appropriate 

given the child’s age, mental condition, and emotional condition; 

and

(9) Advise the court of the child’s wishes to the extent that they 

can be ascertained and present to the court whatever evidence 

exists to support the child’s wishes. When appropriate because 

of the age or mental and emotional condition of the child, 

determine to the fullest extent possible the wishes of the child 

and communicate this information to the court.

Pa.R.J.C.P. 1154. Furthermore, the comment to Rule 1154 provides

guidance as to how the parties and the court are to manage a conflict 

between the best interests and legal interests of a child as follows:
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Comment: If there is a conflict of interest between the duties of 

the guardian ad litem pursuant to paragraphs (7) and (9), the 

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. If there is not a conflict of 

interest, the guardian ad litem represents the legal interests and 

best interests of the child at every stage of the proceedings. 42 

Pa.C.S. § 6311(b). To the extent 42 Pa.C.S. § 6311(b)(9) is

inconsistent with this rule, it is suspended. See Rules 1151 and 

1800. See also Pa.R.P.C. 1.7 and 1.8.

“Legal interests” denotes that an attorney is to express the 

child’s wishes to the court regardless of whether the attorney 

agrees with the child’s recommendation. “Best interests” denotes 

that a guardian ad litem is to express what the guardian ad litem

believes is best for the child’s care, protection, safety, and 

wholesome physical and mental development regardless of 

whether the child agrees.

Pa.R.J.C.P. 1154 cmt.

Additionally, the relevant portion of the Juvenile Act, Section 6311, 

which provides for the appointment of a GAL, states: 

(a) Appointment.--When a proceeding, including a master’s 

hearing, has been initiated alleging that the child is a dependent 

child under paragraph (1), (2), (3), (4) or (10) of the definition 

of “dependent child” in section 6302 (relating to definitions),[6]

the court shall appoint a guardian ad litem to represent the legal 

interests and the best interests of the child. The guardian ad 

litem must be an attorney at law.

(b) Powers and duties.--The guardian ad litem shall be 

charged with representation of the legal interests and the best 

interests of the child at every stage of the proceedings and shall 

do all of the following:

____________________________________________

6 As noted, Child was adjudicated dependent under Pa.C.S. § 6302(1). 

Order, 4/18/16.
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(1) Meet with the child as soon as possible following 

appointment pursuant to section 6337 (relating to 

right to counsel) and on a regular basis thereafter in 

a manner appropriate to the child’s age and 

maturity.

(2) On a timely basis, be given access to relevant 

court and county agency records, reports of 

examination of the parents or other custodian of the 

child pursuant to this chapter and medical, 

psychological and school records.

(3) Participate in all proceedings, including hearings 

before masters, and administrative hearings and 

reviews to the degree necessary to adequately 

represent the child.

(4) Conduct such further investigation necessary to 

ascertain the facts.

(5) Interview potential witnesses, including the 

child’s parents, caretakers and foster parents, 

examine and cross-examine witnesses and present 

witnesses and evidence necessary to protect the best 

interests of the child.

(6) At the earliest possible date, be advised by the 

county agency having legal custody of the child of:

(i) any plan to relocate the child or 

modify custody or visitation 

arrangements, including the reasons 

therefor, prior to the relocation or 

change in custody or visitation; and

(ii) any proceeding, investigation or 

hearing under 23 Pa.C.S. Ch. 63 (relating 

to child protective services) or this 

chapter directly affecting the child.

(7) Make specific recommendations to the court 

relating to the appropriateness and safety of the 
J-A06023-18

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child’s placement and services necessary to address 

the child’s needs and safety.

(8) Explain the proceedings to the child to the extent 

appropriate given the child’s age, mental condition 

and emotional condition.

(9) Advise the court of the child’s wishes to the 

extent that they can be ascertained and present to 

the court whatever evidence exists to support the 

child’s wishes. When appropriate because of the age 

or mental and emotional condition of the child, 

determine to the fullest extent possible the wishes of 

the child and communicate this information to the 

court. A difference between the child’s wishes 

under this paragraph and the recommendations 

under paragraph (7) shall not be considered a 

conflict of interest for the guardian ad litem.

42 Pa.C.S. § 6311 (emphasis added).

Thus, a dependency court is required by statute to appoint a GAL, who 

must be an attorney. 42 Pa.C.S. § 6311(a). The GAL is authorized to 

represent both a child’s legal and best interests. Id. Pursuant to Section 

6311(b)(7), the GAL’s duties in representing a child’s best interests include 

making recommendations to the court regarding a child’s placement needs. 

However, under Section 6311(b)(9), the GAL is to represent a child’s legal 

interests by determining “to the fullest extent possible,” a child’s wishes, if 

those wishes are ascertainable. Factors that must be considered when 

ascertaining a child’s wishes, or legal interests, are a child’s age and mental 

and emotional condition. 42 Pa.C.S. § 6311(b)(9). 

The difficulty arises when, as occurred in this case, the two interests 

conflict. In this regard, we find In re Adoption of L.B.M., 161 A.3d 172 
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(Pa. 2017) instructive, despite that case involving the appointment of

counsel in termination of parental rights cases under 23 Pa.C.S. § 2313. 

Justice Wecht, the author of the lead opinion in L.B.M., stated that 23 

Pa.C.S. § 2313(a) requires the trial court to appoint counsel for a child in a 

termination of parental rights case, and the failure to do so is a structural 

error and is not subject to harmless error analysis. L.B.M., 161 A.3d at 

183. In part II-B of the lead opinion, Justice Wecht concluded that a trial 

court is required to appoint counsel to represent a child’s legal interests 

even when the child’s GAL, who is appointed to represent the child’s best 

interests, is an attorney. Justice Wecht concluded that the interests are 

distinct and require separate representation. Four members of the Court, 

Chief Justice Saylor, and Justices Baer, Todd, and Mundy disagreed with 

Justice Wecht’s strict application of Section 2313(a); rather, they opined, in 

concurring and dissenting opinions, that separate representation is required 

only if the child’s best interests and legal interests conflicted. In other 

words, a child’s GAL may serve as child’s counsel when the GAL’s dual role 

does not create a conflict of interest. L.B.M., 161 A.3d at 183–193. Thus, a 

conflict of interest analysis must be conducted to determine whether a 

child’s legal interests diverge from the child’s best interests. In re 

Adoption of T.M.L.M., ___A.3d ___, 2018 PA Super 87, at *4 (Pa. Super. 

2018) (remanding where a five-year old child’s preference was equivocal 
J-A06023-18

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and child’s counsel had not interviewed the child to determine whether his

best interests and legal interests conflicted).

Furthermore, although Section 6311(b)(9) provides that a dependency 

GAL has no conflict of interest when the child’s best interests and legal 

interests diverge, our Supreme Court suggested in such instances that the 

GAL should request appointment as legal counsel and the assignment of a 

separate GAL. L.B.M., 161 A.3d at 175 n.4 (citing Pa.R.J.C.P. 1154 cmt.); 

see also In Interest of C.P., 155 A.3d 631, 634 n.2 (Pa. Super. 2017) 

(“We note that if a child’s wishes conflict with the GAL’s belief of the best 

interests of that child, the GAL has a conflict and the court may separate the 

representation by retaining the GAL to act solely as the child’s attorney and 

appointing a new GAL. Pa.R.J.C.P. 1151 cmt.”).7 Importantly, the Supreme 

Court suspended Section 6311(b)(9) to the extent that it conflicts with Rule 

1154. Pa.R.J.C.P. No. 1800(3). Thus, pursuant to L.B.M., C.P., Rule 1154

and its comment, and the specific suspension of Section 6311(b)(9), a

____________________________________________

7 We are cognizant that the dependency action in C.P. was necessitated due 

to status offenses under 42 Pa.C.S. § 6302(6), as opposed to parental 

failures under 42 Pa.C.S. § 6302(1) as in the case at bar. C.P., 155 A.3d at 

633. Under the Section 6302 definitions, children can be adjudicated 

dependent based on parental failures, such as here, or based on status 

offenses. Status offenses are defined as “conduct which if engaged in by an 

adult would not be legally prohibited.” In the Interest of R.B., 621 A.2d 

1038, 1042 n.11 (Pa. Super. 1993) (citations omitted). Examples of status 

offenses include truancy, running away from home, and ungovernability. 

Id. Nevertheless, the discussion regarding conflict of interest is instructive.
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divergence between the child’s wishes under 42 Pa.C.S. § 6311(b)(9), and 

the GAL’s recommendations under 42 Pa.C.S. § 6311(b)(7), may be 

considered a conflict of interest for the GAL.

8

It is well settled that “[c]ompetency is the rule and incompetency the 

exception.” Rosche v. McCoy, 156 A.2d 307, 309 (Pa. 1959). Moreover, 

competency is presumed where the child is more than fourteen years of age. 

Id. at 310. Child was not an infant as she was sixteen years old at the time 

she testified that she wanted to remain in Mother’s care despite the GAL’s 

position that it was in Child’s best interest to be placed elsewhere. 

Specifically, Child testified as follows:

____________________________________________

8

In his Dissenting Opinion in L.B.M., Justice Baer concluded:

[I]n dependency proceedings under the Juvenile Act, a GAL 

Attorney represents both the best interests and legal interests of 

the child absent a conflict of interest. If there is a conflict of 

interest, the child must have a GAL representing her best 

interests and separate legal counsel representing legal interests. 

This provision is consistent with Pennsylvania’s Rules of 

Professional Conduct which forbid an attorney from representing 

a client “if the representation involves a concurrent conflict of 

interest.” Pa.R.P.C. 1.7(a) (entitled “Conflicts of Interest: 

Current Clients”).

L.B.M., 161 A.3d at 187 (Baer, J., dissenting). Although this language is 

not precedential, it is an apt discussion of the standards and duties inherent 

in dependency proceedings where the GAL and the child have conflicting 

interests. Indeed, despite being presented in Justice Baer’s Dissenting 

Opinion, this language comports with the reasoning in Justice Wecht’s lead 

opinion and Pa.R.J.C.P. 1154.
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I feel as though the system failed me. I got raped. I got 

(inaudible) onto every house I came onto. I wasn’t eating in 

foster care homes. Why put me back in the situation where I 

was depressed, losing weight, (inaudible) came up in my room. 

I didn’t do nothing in placement but cry myself to sleep. And 

that’s unhealthy. And that’s when my grades went downhill. I 

wasn’t mentally stable, being I felt like I was just in a group 

home. Nobody wanted me. So why move me into that 

predicament because it’s not going to do nothing but make me 

go downhill again. And my grades not going to get no better.

N.T., 6/19/17, at 52. Thus, Child’s wishes were clearly ascertainable. See 

Pa.R.J.C.P. 1154(9). Despite Child’s desire to remain in Mother’s care and 

the ordeals Child stated previously had occurred in foster care, the GAL 

argued against Child remaining at home. N.T., 6/19/17, at 55-56, 58-59. 

The GAL’s best-interests position was based on his concern that Mother was 

neglecting Child’s medical needs, resulting in Child attempting to manage 

her medical condition and being hospitalized multiple times, as well as Child 

spending numerous nights each week away from Mother’s home. 

We conclude that this divergence of opinions between Child’s legal 

interests and best interests presents a conflict as contemplated in L.B.M.

and Pa.R.J.C.P. 1151 and 1154. Accordingly, the GAL should have 

requested that the trial court appoint a separate GAL.9

____________________________________________

9 Although the GAL did not make such a request, Mother did so. On July 3, 

2017, Mother motioned the trial court to appoint a separate GAL to 

represent Child apart from Child’s current GAL. Mother averred there was a 

conflict between Child’s best interests and her legal interests. Motion for 

Appointment of Separate Guardian Ad Litem, 7/3/17, at ¶¶ 5-9. We are 

satisfied that the issue of the appointment of a separate GAL due to a 

(Footnote Continued Next Page)
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In addressing this issue, the trial court noted that L.B.M. dealt with 

the termination of parental rights, and that Justice Wecht, the author of the 

lead opinion in L.B.M., distinguished between the need for separate counsel 

in termination proceedings as opposed to dependency proceedings. Trial 

Court Opinion, 11/20/17, at 4. The trial court correctly explained that if 

there is a conflict between the GAL’s representations under Section 6311(7) 

and the child’s wishes under Section 6311(9), a separate attorney may be 

appointed, but if there is no conflict, the GAL would continue to represent 

the child’s legal and best interests. Trial Court Opinion, 11/20/17, at 5. 

However, the trial court then stated as follows: 

A bald assertion such as has been made here, by counsel for 

[M]other, that because these two opinions conflict, there must 

be a conflict, is spurious and as such a baseless outcry which 

means little more than the “Trial Court was wrong”. There is no 

substance of the record nor can there be. The parties agreed to 

stipulate to the entire record of the Hearing Officer in this matter 

that being Hearing Officer Hobson. [Child] was allowed to testify 

and made clear her desires as to placement. She was not 

inhibited in any way by counsel and only after [Child] made her 

representations did the attorney, acting appropriately, set forth 

reservations as to the return of [Child] to [M]other. Acting as 

Guardian Ad Litem the record is clear that there were multiple, 

very well founded reasons to support the divergent opinion of 

the GAL from the legal interests of [Child].

Id. 

(Footnote Continued) _______________________

conflict between Child’s legal and best interests was properly raised before 

the trial court. See L.B.M., 161 A.3d at 176 (discussing an instance where 

a parent, as opposed to the GAL, presented this issue to the trial court, 

albeit in the context of termination proceedings). 
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Significantly, this analysis does not answer the salient questions: was 

there a conflict, and if so, does it require the appointment of a separate 

GAL? In fact, in its opinion, the trial court affirmatively stated that there 

was a conflict as Child and the GAL’s positions diverged. Trial Court Opinion, 

11/20/17, at 5. The trial court then discussed Commonwealth v. Nixon, 

761 A.2d 1151 (Pa. 2000), and stated that where parents cannot or will not 

fulfill their duties, it is the obligation of the Commonwealth to take on that 

role under the doctrine of parens patriae.

10

 Id. at 6. Applying this parens 

patriae theory, the trial court stated that Child was not receiving proper 

medical care, and it was the duty of the GAL to raise this concern. Id. The 

trial court continued:

The objection to a conflict simply because there was a disparity,

is absolutely of no moment and shows a complete lack of 

understanding of both the appropriate statute and the Court’s 

interpretation of LBM Supra and its progeny. At no time did the

objecting party attempt to place any evidence in record that 

would show that there would be a conflict due to privileged 

information and in fact at no time was there any attempt to 

show anything other than the disparity in the best interest of 

[Child] vers[u]s the legal interests. This reasoning is clearly 

insufficient to warrant the disqualification of the GAL and nothing 

in our statutes or our case law remotely suggests that that 

would be appropriate. As such, the Court entered the opinion 

that it did allowing Attorney Engle to continue both as counsel 

and GAL.

____________________________________________

10 Parens patriae refers to the role of the state as sovereign and guardian of 

persons under a legal disability to act for themselves such as juveniles. D.P. 

v. G.J.P., 146 A.3d 204, 211 n.9 (Pa. 2016) (citation omitted).
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Id. at 6-7. We are constrained to conclude that the trial court’s analysis is

misplaced.

Although attorney-client privilege is one example of a potential conflict 

contemplated in the comment to Pa.R.J.C.P. 1154, it is not the only potential 

for conflict. Moreover, the trial court’s characterization of Mother’s desire to 

“disqualify” the GAL is errant. Nothing in the record leads this Court to 

conclude that Mother simply wanted the GAL disqualified; Mother requested 

the appointment of a separate GAL to represent Child’s best interests while 

the current GAL represented Child’s legal interests, as contemplated in the 

comment to Pa.R.J.C.P. 1154. Motion for Appointment of Separate Guardian 

Ad Litem, 7/3/17, at ¶9.

As noted above, Child and the GAL had diametrically opposed positions 

on Child’s placement. Child, who was sixteen years old, testified that, 

among other things, she was raped in foster care, and despite the gravity of 

this allegation, the GAL maintained that Child’s health issues and Mother’s 

failures in this regard necessitated placement. N.T., 6/19/17, at 52, 55-56, 

58-59. We conclude that these divergent opinions constituted a conflict, the 

trial court abused its discretion in concluding otherwise, and erred in 

refusing to appoint a separate GAL. Accordingly, we reverse the trial court’s 

August 24, 2017 order that denied the appointment of a separate GAL, and 

we remand this matter to the trial court for the appointment of a GAL to 

represent Child’s best interests while the current GAL shall continue to 
J-A06023-18

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represent Child’s legal interests as counsel for Child pursuant to Pa.R.J.C.P. 

1151(C). 

Order reversed. Case remanded with instructions. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/2018