J-S39007-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: RELINQUISHMENT OF A.C., A 

MINOR

APPEAL OF: A.H.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 128 MDA 2018

Appeal from the Order Entered December 20, 2017

In the Court of Common Pleas of Lackawanna County 

Orphans' Court at No: A-73-2017

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.: FILED AUGUST 21, 2018

A.H. (“Father”) appeals from the order entered on December 20, 2017, 

in the Court of Common Pleas of Lackawanna County, involuntarily 

terminating his parental rights to his son, A.C. (“Child”), born in August of 

2012.1 Upon review, we vacate and remand for proceedings consistent with 

this memorandum.

In its opinion pursuant to Pa.R.A.P. 1925(a), the orphans’ court set forth 

the factual and procedural history of this case, which the certified record 

supports. As such, we adopt it herein. See Trial Court Opinion, 1/23/18, at 

1-6.

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1 The court also involuntarily terminated the parental rights of T.C. (“Mother”) 

by order entered on December 20, 2017. Mother did not appeal, and she is 

not a party in this appeal. 
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By way of background, on September 20, 2015, the court removed Child

from Mother due to her severe mental health issues, and placed him in the 

care of the Lackawanna County Office of Children and Family Services 

(“Agency”). Id. at 2 (citation to record omitted). Child was placed in his 

current foster care home, a pre-adoptive resource, on August 5, 2016. Id. 

With respect to Father, the Agency was unable to locate him until January 3, 

2017, at which time the Agency learned that he was incarcerated. Id. (citation 

to record and footnote omitted). The court found:

While some written correspondence between the caseworker and 

Father ensued, copies of which have been made part of the record, 

they never spoke directly as Father failed to respond to 

Caseworker Herie’s inquiries regarding the reason for his 

incarceration, his prison counselor’s name, which was necessary 

in order to contact him by phone, and any programs he completed 

while incarcerated. Nonetheless, the Agency learned that Father 

had been incarcerated in a facility in Jonesville, Virginia, but he 

was released therefrom on April 14, 2017 and transferred to 

Southern State Correctional in New Jersey. Father, apparently 

initially incarcerated in August 20144, will have served his 

maximum sentence on May 2, 2023, and he will not be eligible for 

parole until May 13, 2019.

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4 Father, however, indicates that he has “been in since 2012,” and 

that minor child “was four months old” at the time.

Id. at 3 (citations to record omitted).

On October 20, 2017, the Agency filed a petition for the involuntary 

termination of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), 

(2), (5), (8), and (b). A hearing on the petition commenced on November 28, 

2017, and continued on December 15, 2017. Child, who was then five years 
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old, was represented by his guardian ad litem (“GAL”) from the underlying 

dependency matter, Kevin O’Hara, Esquire. At the conclusion of the 

testimonial evidence,2 Attorney O’Hara recommended to the orphans’ court 

that Father’s parental rights be terminated involuntarily based on Child never 

having contact with Father, and, therefore, Child not having a bond with him. 

N.T., 12/15/17, at 50. 

By order dated December 19, 2017, and entered on December 20, 2017, 

the orphans’ court involuntarily terminated Father’s parental rights. Father 

timely filed a notice of appeal and a concise statement of errors complained 

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

filed its Rule 1925(a) opinion on January 23, 2018.

Before addressing the merits of Father’s appeal, we must raise sua 

sponte whether Child was denied legal counsel during the involuntary 

termination proceeding pursuant to Section 2313(a) of the Adoption Act. See 

In re Adoption of T.M.L.M., ___ A.3d ___, 2018 PA Super 87, *4 (Pa. Super. 

April 13, 2018) (“This Court must raise the failure to appoint statutorilyrequired counsel for children sua sponte, as children are unable to raise the 

issue on their own behalf due to their minority.”) (citing In re K.J.H., 180 

A.3d 411, 414 (Pa. Super. 2017) (Judge Olson dissenting)). 

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2 The Agency presented the testimony of its caseworker, Lisa Herie. Father 

testified on his own behalf.
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It is undisputed that the appointment of counsel to represent a child in 

a contested termination proceeding is mandatory pursuant to Section 2313(a) 

of the Adoption Act, which provides as follows.

(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. § 2313(a). The term “counsel” in Section 2313(a) refers to an 

attorney representing the child’s legal interests, which our Supreme Court 

defined as the child’s preferred outcome of the termination proceedings, as 

opposed to the child’s best interests, “which the trial court must determine.” 

In re Adoption of L.B.M., 161 A.3d 172, 174 (Pa. 2017). It is relevant that 

the Juvenile Act mandates a guardian ad litem’s (“GAL”) dual representation 

of a child’s legal and best interests during the dependency proceedings. See

42 Pa.C.S. § 6311(a). The lead opinion in L.B.M. did not gain a majority of 

the justices for the proposition that an attorney appointed as GAL during the 

underlying dependency proceedings is prohibited from serving as Section 

2313(a) counsel. In In re D.L.B., 166 A.3d 322 (Pa. Super. 2017), this Court 

concluded that, based on the plurality decision in L.B.M., a GAL appointed 

during the dependency proceedings may serve as legal counsel pursuant to 

Section 2313(a), so long as the child’s legal and best interests are not in 

conflict.
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In this case, the orphans’ court did not enter an order appointing counsel 

to represent Child in the contested termination of parental rights proceedings 

pursuant to Section 2313(a). During the termination hearing, Attorney O’Hara 

did not identify himself as either GAL or counsel for Child. Neither the orphans’ 

court nor the parties sought to clarify in what capacity Attorney O’Hara

represented Child during the hearing. Attorney O’Hara did not indicate Child’s 

preferred outcome of the termination proceedings or identify a potential 

conflict between his legal and best interests. Moreover, nothing in the record 

indicates that the court appointed Attorney O’Hara as GAL after conducting a 

conflict-of-interest analysis and determining that Child’s legal and best 

interests are not in conflict. 

We are constrained to vacate the order without prejudice and remand 

for the orphans’ court to appoint legal-interests counsel for Child pursuant to 

Section 2313(a). The court may appoint Attorney O’Hara as legal-interests 

counsel only if it makes an on-the-record determination that there is no 

conflict between Child’s legal and best interests. See L.B.M., 161 A.3d at 

183-193 (a majority of our Supreme Court concluding that counsel may serve 

as a GAL and legal counsel so long as there is no conflict between those 

interests); see also D.L.B., supra. If the court determines that there is no 

conflict between Child’s interests, then it may re-enter the original order. 

However, if the court determines that Child’s legal interest is different from 

his best interest, then the court shall conduct a new termination hearing. 
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Order vacated without prejudice. Case remanded for the appointment 

of legal-interests counsel for Child pursuant to Section 2313(a) and additional 

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judge Musmanno joins this memorandum.

Judge Murray concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/21/2018