J-A08017-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

IN RE: ADOPTION OF D.S. :

:

IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: S.S., MOTHER, :

: No. 3281 EDA 2015

Appeal from the Order entered on September 30, 2015

in the Court of Common Pleas of Pike County,

Civil Division, No(s): 11 OCA 2015 

BEFORE: BOWES, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY OLSON, J.: FILED JUNE 10, 2016

S.F. f/k/a S.S. (“Mother”) appeals from the order dated and entered 

on September 30, 2015, denying her petition to involuntarily terminate the 

parental rights of her former husband, M.S. (“Father”), to their minor son, 

D.S., born in April of 2003,1(“Child”), pursuant to the Adoption Act, 23 

Pa.C.S. § 2511(a)(1) and (b).2 We vacate, and remand.

The trial court set forth the relevant history of this case in its

opinion as follows.

[Mother] filed for [d]ivorce from [Father in June of 2006]. [The 

trial court] granted a Protection From Abuse (“PFA”) Order in 

[Mother’s] favor on August 1, 2006 for a period of three (3) 

years. A Custody Hearing occurred on August 3, 2006 which 

resulted in the Report and Recommendation of a Hearing Officer 

 

1 N.T., 9/29/15, at 6.

2 Although the trial court decree did not cite a specific subsection of section 

2511(a), it is apparent from the language in its opinion entered on 

November 19, 2015, that it denied termination of Father’s parental rights 

pursuant to section 2511(a)(1) and (b). 
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adopting the custody arrangement provided for in the Protection 

From Abuse Order.

[The trial court] adopted the Report and Recommendation of an 

appointed Hearing Officer on August 23, 2006. That Order 

adopted the custodial arrangement established in the PFA Order, 

granting [Mother] sole legal and physical custody of [Child] and 

allowing [Father] visitation only in the presence of third-party 

supervision such as Catholic Social Services or Children and 

Youth Services. The parties were eventually divorced by Decree 

dated [March of 2008].

[Father] filed a [c]omplaint for [v]isitation on May 18, 2015. 

[Mother] filed a [r]eport of [i]ntention to [a]dopt and a [p]etition 

for [i]nvoluntary [r]elinquishment of [Father’s] [p]arental 

[r]ights on July 22, 2015.

Trial Court Opinion, 11/19/15, at 1-2.

On August 17, 2015, Mother’s fiancé, R.E., filed a petition for adoption 

of Child. The trial court held a hearing on Mother’s termination petition on 

September 29, 2015. At the hearing, Mother testified on her own behalf and 

presented the testimony of R.E. Father testified on his own behalf. 

In an order dated and entered on September 30, 2015, the trial court 

denied Mother’s termination petition.3 On October 29, 2015, Mother timely 

filed a notice of appeal along with a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

In her brief on appeal, Mother raises three questions for this Court’s 

review, as follows:

 

3 On October 1, 2015, the trial court entered an order that canceled the 

hearing on R.E.’s adoption petition, scheduled to occur on November 3, 

2015, as moot.
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1. Did [Mother] exhibit by clear and convincing evidence that 

Father had both evidenced a settled purpose of relinquishing a 

parental claim to [Child] and failed [to] perform essential 

parental duties for [Child’s] entire life? 

2. Did the trial court err in giving weight to Mother’s alleged 

attempts to block access to [Child] when Father made no 

showing that he made substantial efforts to overcome such 

obstacles and the law requires he utilize all available resources?

3. Was it reversible error for the trial court to not appoint a 

guardian ad litem [sic] when petitioner included a request for the 

appointment of a guardian and the law requires such an 

appointment? 

 

Mother’s Brief, at 6.4

Initially, we address Mother’s third issue stating that the trial court 

erred in failing to appoint a guardian ad litem to represent Child, pursuant to 

section 2313 of the Adoption Act, which provides as follows:

§ 2313. Representation

(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 guardian ad litem 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. § 2313.5

 

4 We note that Father, who was represented by counsel, did not file a brief.

5

In the statement of questions raised section of her brief, Mother alleges 

that the trial court’s failure to appoint a guardian ad litem constituted 

reversible error. Thereafter, throughout her brief, Mother refers 
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As this issue presents the interpretation of a statute, our scope and 

standard of review are as follows:

[T]he interpretation and application of a statute is a question of 

law that compels plenary review to determine whether the court 

committed an error of law. As with all questions of law, the 

appellate standard of review is de novo and the appellate scope 

of review is plenary. 

B.K.M. v. J.A.M., 50 A.3d 168, 172 (Pa. Super. 2012) (quotations omitted).

In In re K.M., 53 A.3d 781, 787 (Pa. Super. 2012), a panel of this 

Court stated that section 2313(a) mandates that the trial court appoint 

counsel in all cases where involuntary termination of parental rights is 

contested. The issue in In re K.M. was whether the court was required to 

appoint a separate attorney to represent the child in a contested proceeding 

 

interchangeably to the court’s failure to appoint a “guardian ad litem” and/or 

“counsel” for Child. Despite this, the terms “guardian ad litem” and 

“counsel” carry significant legal distinctions for purposes of section 2313. In 

contested termination proceedings, the appointment of counsel for the child

is mandatory under section 2313. See 23 Pa.C.S.A. § 2313. However, the 

appointment of a guardian ad litem in such proceedings falls within the 

discretion of the court. Id.

In light of this distinction, and to apply the proper standard, we must 

consider whether Mother raised and preserved her right to appellate review 

of an objection to the trial court’s failure to appoint counsel for Child in this 

contested termination proceeding. Our review of the record confirms that 

Mother properly raised and preserved this issue. In her petition for 

involuntary relinquishment of Father’s parental rights, Mother stated that 

she would advise the court if Father intended to contest the proceedings “so 

that an attorney may be appointed for [Child] as required by 23 Pa.C.S.A. 

§ 2313[.]” Petition, 7/22/15, at 4 ¶17. Mother’s concise statement also 

provided that, “the court was required to appoint counsel for [Child].” 

Concise Statement, 10/29/15, at 2 ¶5. Although the trial court, in its 

Pa.R.A.P. 1925(a) opinion, recognized that Mother raised this issue in her 

concise statement, the trial court failed to address the issue in the opinion. 

See Trial Court Opinion, 11/19/15, at 2.
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when the trial court appointed a guardian ad litem, who was an attorney. 

More simply, In re K.M. asked whether the attorney and the guardian ad 

litem representing a child in a contested proceeding must be different 

individuals. This Court found that the statute does not require such a 

duplicative appointment. Although the precise issue in In re K.M. is not 

before us, the case makes clear that the appointment of counsel is 

mandatory where termination proceedings are contested.

In In re Adoption of G.K.T., 75 A.3d 521 (Pa. Super. 2013), a panel 

of this Court also held that a trial court committed reversible error in failing 

to appoint counsel. The panel in In re Adoption of G.K.T. stated as 

follows: 

The right to counsel belongs to the child, and there is no 

appointed counsel for the child who could have raised the 

child’s rights in the proceedings before the [orphans’] 

court. The question goes to a fundamental statutory 

requisite to the [orphans’] court’s decision in this matter.

Upon our careful review of the record in this case and the 

[orphans’] court’s disposition, we must conclude that the 

[orphans’] court committed an error of law by failing to 

appoint counsel to represent the child pursuant to 23 

Pa.C.S.A. § 2313(a), which directs that the court “shall” 

appoint such counsel. This Court has previously observed 

that the word “shall” is mandatory, or imperative when 

used in a statute, although whether that word is directory 

or permissive is dependent upon the intent of the 

Legislature. Tyler v. King, 344 Pa. Super. 78, 496 A.2d 

16, 19 (1985). Regarding the Legislature’s use of the 

word “shall” in section 2313(a) of the Adoption Act, this 

Court has interpreted the word “shall” in section 2313(a) 

as being mandatory, not permissive, and as serving as a

direction to the court to appoint counsel. 
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[In re E.F.H., 751 A.2d 1186,] 1189-1190 [(Pa. Super. 2000)].

After careful review, we find E.F.H. to be controlling in this 

matter. The orphans’ court did not appoint counsel for the 

[c]hild, despite section 2313’s mandatory language to the 

contrary. Adoptive Couple and the orphan’s court acknowledged 

that no counsel was appointed. . . . However, Adoptive Couple 

argues that the error was harmless because “at the time of 

placement and throughout the [orphans’] court proceedings, 

[the [c]hild] would have been incapable of communicating with 

[counsel].” . . . 

We find this argument unavailing. “[T]he purpose of [section] 

2313(a) is to ensure that the needs and welfare of a child will be 

actively advanced by an advocate who owes loyalty only to the 

child.” It may be true that when the child is a newborn, 

counsel’s role is limited by the child’s inability to communicate 

with him or her. However, we do not believe that it follows that 

counsel is unnecessary or gives us cause to ignore the plain text 

of section 2313(a). Counsel would still be required to 

independently advocate for the [c]hild’s best interests, 

regardless of whether the [c]hild can communicate his 

preference or not. We decline Adoptive Couple’s invitation to 

read an age component into section 2313(a)’s otherwise 

mandatory text. Based on these considerations, we conclude 

that the orphans’ court committed reversible error in failing to 

appoint a counsel for the [c]hild as required by section 2313(a).

In re Adoption of G.K.T., 75 A.3d at 526-527 (quotation and citations 

omitted) (footnote omitted) (emphasis in original).

The decisions cited above are controlling in this appeal. Accordingly, 

we find that the trial court erred in failing to appoint counsel to represent 

Child. We vacate the order, and remand the matter to the trial court for 

appointment of counsel, and a new termination hearing.6

 

6 As we are vacating the trial court’s order and remanding for a new 

termination hearing once counsel is appointed for Child, we need not 

address Mother’s other two issues raised on appeal.
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Order vacated. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/10/2016