J-S09027-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: ADOPTION OF: N.M.P.-C., A 

MINOR

APPEAL OF: J.C., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3218 EDA 2023

Appeal from the Decree Entered November 29, 2023

In the Court of Common Pleas of Montgomery County Orphans’ Court at 

No(s): 2023-A0116

BEFORE: PANELLA, P.J.E., NICHOLS, J., and BECK, J.

MEMORANDUM BY NICHOLS, J.: FILED APRIL 30, 2024

Appellant J.C. (Father), appeals from the decree involuntarily 

terminating his parental rights to his minor child, N.M.P.-C. (Child).1 Father 

argues that the trial court erred in terminating his parental rights. After 

careful review, we vacate and remand with instructions.

Briefly, Father and R.P. (Mother) were married from September of 2004

through May of 2014. See N.T., 11/28/23, at 7. Following their separation, 

the parties entered a custody agreement that provided Father partial physical 

custody. See id. at 7-8. In May of 2016, Father emailed Mother’s counsel 

and stated: “Please advise your client that I am prepared to relinquish my 

parental rights as well as my responsibility of support.” Id. at 9. 

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1 Child was born in May of 2009. See N.T., 11/28/23, at 7.
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On June 20, 2016, the parties entered into a stipulation granting Mother 

sole legal and physical custody of Child. See id. at 11. The stipulation also 

relieved Father of his financial obligation to support Child. See id. In the six 

months immediately preceding the petition to involuntarily terminate Father’s 

parental rights, Father did not exercise any physical custody of Child. Further, 

Father had no contact with Child, and he did not object when Mother sought 

to change Child’s last name. See id. at 11-12.

On August 21, 2023, Mother filed a petition to involuntarily terminate 

Father’s parental rights. Father was represented by Matthew S. Brittenburg, 

Esq., and Mother was represented by Colleen Norcross, Esq. The trial court 

appointed Lisa Kane Brown, Esq., as guardian ad litem (GAL) for Child. See 

Order, 10/4/23.

On November 18, 2023, the trial court held a hearing on Mother’s 

contested petition for the involuntary termination of Father’s parental rights. 

At the hearing, Father was represented by Attorney Brittenburg, Mother was 

represented by Attorney Norcross, and Child was represented by Attorney 

Kane Brown, the GAL. See N.T., 11/18/23, at 1. At the conclusion of the 

hearing, the trial court concluded that there was clear and convincing evidence 

to support terminating Father’s parental rights, that terminating Father’s 

parental rights would not harm Child, that there was no bond between Father 

and Child. See id. at 128-33. Thereafter, the trial court entered a decree

terminating Father’s parental rights to Child. See Decree, 11/29/23.
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Father filed a timely appeal and statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925. The trial court did not draft a Rule 1925(a) 

opinion.

On appeal, Father presents the following issues:

1. Whether sufficient evidence supported the termination of

parental rights of . . . Father based on 23 Pa.C.S. § 2511(a)(1) 

where . . . Father had continued reaching out to [C]hild within 

the six months immediately preceding the filing of the petition 

to terminate his parental rights?

2. Whether the trial court erred in finding there was no bond with 

. . . Father and that [C]hild’s needs and welfare pursuant to 

23 Pa.C.S. § 2511(b) would be met by the termination of 

Father’s parental rights?

3. Whether the trial court erred when it precluded the admission 

of evidence concerning the proposed adoptive father’s drug 

addiction as a risk to [C]hild?

Father’s Brief at 1 (formatting altered).

Before addressing Father’s issues, we must review whether the trial 

court appointed legal counsel to represent Child for the termination 

proceedings pursuant to 23 Pa.C.S. § 2313(a). See In re Adoption of 

K.M.G., 240 A.3d 1218, 1235 (Pa. 2020). Our Supreme Court has interpreted 

Section 2313(a) “as requiring ‘that the common pleas court appoint an 

attorney to represent the child’s legal interests, i.e. the child’s preferred 

outcome.’” Id. (citation omitted). Additionally, the failure to appoint a 

“‘separate attorney to represent the child’s legal interests constitutes 

structural error, meaning it is not subject to a harmless-error analysis.’” Id.

(citations omitted).
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It is well settled that “a single attorney cannot represent a child’s best 

interests and legal interests if those interests conflict.” Id. at 1236 (citation 

omitted). 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 . . . .” Id. 

Further, where the trial court appoints one attorney to represent both the 

child’s best interests and legal interests, appellate courts review whether the 

trial court “made a determination that those interests did not conflict.” Id. at 

1235.

As stated, the record reflects that Attorney Kane Brown was appointed 

as GAL.2 See Order, 10/4/23. However, there is no indication that the trial 

court appointed separate legal counsel to represent Child’s legal interests, and 

there was no determination that Attorney Kane Brown, as GAL was able to 

represent Child’s best interests and legal interests because the trial court 

never determined whether there was, in fact, a conflict between those

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2 Attorney Kane Brown remains Child’s appellate counsel and counsel of 

record.
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interests.3 See K.M.G., 240 A.3d at 1236.4 Therefore, we are constrained to 

vacate the involuntary termination decree and remand for further 

proceedings. See id.; see also In re A.J.R.O., 270 A.3d 563, 570 (Pa. 

Super. 2022) (reiterating that “appellate review of this question does not 

involve second–guessing whether GAL/[legal c]ounsel in fact had a conflict 

but solely whether the [trial] court made the determination in the first 

instance” (citations omitted)).

On remand, within thirty days of the date the record is remitted, we 

direct the trial court to fulfill its Section 2313(a) duty as articulated in K.M.G.

and determine whether Attorney Brown Kane may represent both the best 

interests and legal interests of Child. If the trial court determines that no 

conflict exists between Child’s dual interests, then the trial court shall re-enter 

the termination decree as to Father. If the trial court determines that there 

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In addition, we note that Child is over the age of 12 and must consent to 

adoption. See 23 Pa.C.S. § 2711(a)(1). The record reflects that Child did 

complete a consent to adoption pursuant to Section 2711(a). See Consent, 

9/20/23. However, when Child signed this document, the GAL had not yet 

been appointed. Further, the record does not reflect that the trial court 

addressed Child’s views about adoption or to what extent Child was advised 

of the implications of adoption, and as noted, there is no judicial determination 

concerning whether Child’s legal and best interests conflict or whether the GAL 

can represent both interests. 

4 While we recognize that remanding pursuant to 23 Pa.C.S. § 2313(a) for a 

determination concerning whether there is a conflict between Child’s legal 

interests and best interests and whether Attorney Kane Brown may represent 

both of those interests will result in a delay, this Court we may not make this 

determination on the trial court’s behalf. See In re A.J.R.O., 270 A.3d 563, 

570-71 (Pa. Super. 2022).
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is a conflict between Child’s best interests and legal interests, then the court 

shall appoint separate legal counsel for Child and conduct a new termination 

hearing at which time Child’s legal counsel can advocate on behalf of Child’s 

legal interests. See K.M.G., 240 A.3d at 1235.

Decree vacated and remanded with instructions. Jurisdiction 

relinquished.

Date: 4/30/2024