J-S67031-17 

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: T.Z.W.T., A 

MINOR

APPEAL OF: S.T.W., MOTHER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 914 EDA 2017

Appeal from the Order March 7, 2017

In the Court of Common Pleas of Philadelphia County 

Family Court at No(s): CP-51-AP-0000437-2016, 

CP-51-DP-0002518-2014

IN THE INTEREST OF: T.Q.K.W.T., A 

MINOR

APPEAL OF: S.T.W., MOTHER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 915 EDA 2017

Appeal from the Order March 7, 2017

In the Court of Common Pleas of Philadelphia County 

Family Court at No(s): CP-51-AP-0000438-2016, 

CP-51-DP-0002521-2014

IN THE INTEREST OF: T.Q.T.W., A 

MINOR

APPEAL OF: S.T.W., MOTHER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 916 EDA 2017

Appeal from the Order March 7, 2017

In the Court of Common Pleas of Philadelphia County 

Family Court at No(s): CP-51-AP-0000439-2016, 

CP-51-DP-0002520-2014

BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 12, 2019

In these consolidated appeals, Appellant, S.T.W. (“Mother”) challenges 

the orders entered in the Philadelphia County Court of Common Pleas, 

Family Court, which terminated her parental rights to her three children, 
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T.Z.W.T. (born in August 2014), T.Q.K.W.T. (born in August 2011) and 

T.Q.T.W. (born in April 2013). We affirm the court’s orders as to T.Z.W.T. 

and T.Q.T.W. We also affirm the court’s decision under Section 2511(a) and 

(b) with respect to T.Q.K.W.T., but we must vacate that termination order 

and remand for appointment of counsel under 23 Pa.C.S.A. § 2313(a), and 

for further evaluation and reconsideration of that termination order under 

current prevailing law, without prejudice to reinstate it after 

reconsideration.1 

The trial court accurately set forth the relevant facts and procedural 

history of this case as follows:

In 2014, the family became known to the Department of 

Human Services (“DHS”) pursuant to a General Protective 

Services (“GPS”) report which alleged that Children resided 

in an abandoned house with Mother and her paramour. It 

was also alleged that [infant] Child, T.Z.W.T., was 

hospitalized at St. Christopher’s Children’s Hospital due to 

a blood infection caused by environmental problems in the 

abandoned house. On October 24, 2014, T.Z.W.T. was 

discharged from St. Christopher’s Hospital...and T.Z.W.T. 

was required to have a gastrostomy tube for six months. 

Mother had previously been diagnosed with bipolar 

disorder and was not receiving treatment. 

____________________________________________

1 Disposition of this case was delayed because Mother raised an issue on 

appeal, concerning the appointment of legal counsel for Children, that was

pending before this Court en banc in a case recently decided on December 

10, 2018. See In re K.R., 200 A.3d 969 (Pa.Super. 2018) (en banc). We 

were also awaiting our Supreme Court’s decision in the case of In re T.S.,

___ Pa. ___, 192 A.3d 1080 (2018), cert. denied, ___ U.S. ___, ___ S.Ct. 

___, 2019 WL 659981 (Feb. 19, 2019). Since those decisions, the law in 

this area has evolved and changed, depending on the circumstances of each 

case. 
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On the day of Child T.Z.W.T.’s release from the hospital, 

October 24, 201[4], DHS obtained an Order of Protective 

Custody (“OPC”) for the Children. [On October 27, 2014, 

the court appointed the Defender Association of 

Philadelphia, Child Advocacy Unit, to serve as counsel and 

guardian ad litem (“GAL”) for Children. Additionally, DHS 

placed T.Z.W.T. and T.Q.T.W. with their Maternal 

Grandmother, and T.Q.K.W.T. with his Maternal Aunt.] On 

November 7, 2014, Children were adjudicated dependent 

and committed and placed in the DHS foster care.[2] On 

January 13, 2015, the Community Umbrella Agency 

(“CUA”) held the initial Single Case Plan (“SCP”) meeting. 

The goal for the family was reunification. The objectives 

identified for Mother were (1) to stabilize her mental 

health; (2) to complete intake at the Wedge Medical 

Center (“Wedge”); (3) to improve parenting/coping skills; 

(4) to continue to actively participate in all parenting, 

anger management counseling sessions; (5) to maintain 

her relationship with Children; (6) to attend her scheduled 

visits with Children; (7) to maintain safe and stable 

housing; (8) to enroll in the Achieving Reunification Center 

(“ARC”).

On January 15, 2016, Dr. William Russell conducted a 

parenting capacity evaluation of Mother. On January 26, 

2015, Mother participated in a psychological evaluation 

conducted by Genevieve Chaney, PsyD and Timothy 

Overton, BA. Pursuant to this Psychological Evaluation, 

Dr. Chaney opined that Mother suffered from a mild 

intellectual disability and borderline personality. Dr. 

Chaney recommended that Mother (1) receive a 

psychiatric exam; (2) Mother be referred to Philadelphia’s 

Disability Services to determine if she was eligible for 

services; (3) Mother should comply with DHS services; (4) 

Mother should receive a parenting evaluation; (5) Mother 

should be explained things slowly and in writing.

On [May 17], 2016, DHS filed the underlying Petition to 

____________________________________________

2 Children continued to reside with their foster caregivers, who have become

pre-adoptive resources for Children.
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Terminate Mother’s Parental Rights to Child[ren]. Prior to 

the filing of the Petition, Mother had failed to comply with 

her SCP objectives and Mother had failed to enroll in the 

ARC program for housing and anger management. She 

also failed to enroll in domestic violence counseling. 

Mother was also inconsistent with participating in her 

mental health treatment and Mother had not stabilized her 

mental health. On March 7, 2017[,] this [c]ourt 

terminated Mother’s parental rights to Children pursuant to 

23 Pa.C.S.A. § 2511(a)(1), (2), (5), ...(8)[, and (b)3]. The 

[c]ourt ruled that [Children’s] goal be changed to 

adoption. Thereafter, Mother filed [timely] Notice[s] of 

Appeal on March 17, 2017[, and concise statements of 

errors complained of on appeal pursuant to Pa.R.A.P. 

1925(a)(2)(i)].

(Trial Court Opinion, filed May 23, 2017, at 3-5) (internal citations omitted).4 

Mother raises four issues for our review:

DID THE DEPARTMENT OF HUMAN SERVICES (“DHS”) 

SUSTAIN ITS BURDEN UNDER 23 PA.C.S.A. § 2511(A)(1), 

(2), (5), OR (8) THAT MOTHER’S RIGHTS SHOULD BE 

TERMINATED WHEN THERE WAS EVIDENCE THAT MOTHER 

HAD COMPLETED AND/OR HAD BEEN ACTIVELY 

COMPLETING HER PERMANENCY GOALS?

WAS THERE SUFFICIENT EVIDENCE PRESENTED TO 

ESTABLISH UNDER 23 PA.C.S.A. § 2511(B) THAT IT WAS 

IN THE BEST INTERESTS OF...CHILDREN TO TERMINATE 

MOTHER’S PARENTAL RIGHTS?

DID THE [TRIAL] COURT ERR WHEN IT MADE A SPECIFIC 

____________________________________________

3 The court also terminated the parental rights of Children’s father, A.T. 

(“Father”). Father is not a party to this appeal. 

4 We see no reason to involve or discuss in these appeals the recent decision 

of Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969 (2018) 

(requiring prospectively, separate notices of appeal from single orders which 

resolve issues arising on separate trial court docket numbers). Mother’s 

appeals predate Walker. 
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FINDING OF FACT BY RELYING ON DHS “EXHIBIT A” 

ENTITLED “STATEMENT OF FACTS” THAT WAS ATTACHED 

TO THE PETITIONS FOR GOAL CHANGE AND TERMINATION 

OF PARENTAL RIGHTS WHEN THERE WAS NO 

STIPULATION OR TESTIMONY PRESENTED AS TO THE 

“FACTS” RELIED UPON IN THAT EXHIBIT?

DID THE [TRIAL] COURT FULLY CONSIDER ALL 

NECESSARY FACTORS PURSUANT TO THE PENNSYLVANIA 

JUVENILE ACT, SPECIFICALLY 42 PA.C.S.A. § 6351(E) 

[AND] (F), IN ITS DETERMINATION THAT THE GOAL OF 

ADOPTION IS IN THE CHILDREN’S BEST INTEREST?

(Mother’s Brief at 4).5 

The standard and scope of review applicable in termination of parental 

rights cases are as follows:

When reviewing an appeal from a decree terminating 

parental rights, we are limited to determining whether the 

decision of the trial court is supported by competent 

evidence. Absent an abuse of discretion, an error of law, 

or insufficient evidentiary support for the trial court’s 

decision, the decree must stand. Where a trial court has 

granted a petition to involuntarily terminate parental 

rights, this Court must accord the hearing judge’s decision 

the same deference that it would give to a jury verdict. 

We must employ a broad, comprehensive review of the 

record in order to determine whether the trial court’s 

decision is supported by competent evidence.

Furthermore, we note that the trial court, as the finder of 

fact, is the sole determiner of the credibility of witnesses 

and all conflicts in testimony are to be resolved by the

finder of fact. The burden of proof is on the party seeking 

termination to establish by clear and convincing evidence 

the existence of grounds for doing so. 

The standard of clear and convincing evidence means 

____________________________________________

5 For purposes of disposition, we have reordered Mother’s issues. 
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testimony that is so clear, direct, weighty, and convincing 

as to enable the trier of fact to come to a clear conviction, 

without hesitation, of the truth of the precise facts in issue. 

We may uphold a termination decision if any proper basis 

exists for the result reached. If the trial court’s findings 

are supported by competent evidence, we must affirm the 

court’s decision, even though the record could support an 

opposite result. 

In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal 

denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted). 

We combine Mother’s first, second, and third issues, in which she 

argues she had been actively treating her mood disorder at the time DHS 

filed the petition for involuntary termination of her parental rights. Mother 

asserts her mental health had improved to the point where she no longer 

needed medication. Mother maintains she was participating in her mental 

health treatment at the Wedge facility. Mother contends she was unable to 

complete therapy because her therapist stopped working at that location,

and no one contacted Mother about continuing treatment with a new 

therapist. Mother highlights the CUA caseworker’s testimony that Mother’s 

home would be safe and appropriate for Children once she obtained beds, 

and that Mother was no longer a danger to Children. Mother claims she 

remedied the mental health and housing issues, which brought Children into 

DHS’ care. Mother challenges the court’s supposition that she was residing 

with Father. Mother insists she has a bond with Children. Mother submits 

the court failed to consider the effect of Children not residing together in one 

household. 
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Mother also complains the trial court opinion cited to facts presented in 

DHS’ “Statement of Facts” (attached as an exhibit to its termination 

petition), where those facts were not established at the termination hearing. 

Mother submits the “Statement of Facts” is nothing more than unproven 

allegations. Mother concludes DHS failed to meet its burden under Section 

2511(a) and (b), and this Court must reverse the order terminating Mother’s 

parental rights to Children. We disagree that Mother is entitled to relief on 

these grounds. 

The court granted DHS’ petition for involuntary termination of Mother’s 

parental rights on the following grounds:

§ 2511. Grounds for involuntary termination

(a) General Rule.―The rights of a parent in regard to a 

child may be terminated after a petition filed on any of the 

following grounds:

(1) The parent by conduct continuing for a period of 

at least six months immediately preceding the filing 

of the petition either has evidenced a settled purpose 

of relinquishing parental claim to a child or has 

refused or failed to perform parental duties.

(2) The repeated and continued incapacity, abuse, 

neglect or refusal of the parent has caused the child 

to be without essential parental care, control or 

subsistence necessary for his physical or mental 

well-being and the conditions and causes of the 

incapacity, abuse, neglect or refusal cannot or will 

not be remedied by the parent.

* * *

(5) The child has been removed from the care of the 

parent by the court or under a voluntary agreement 
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with an agency for a period of at least six months, 

the conditions which led to the removal or placement 

of the child continue to exist, the parent cannot or 

will not remedy those conditions within a reasonable 

period of time, the services or assistance reasonably 

available to the parent are not likely to remedy the 

conditions which led to the removal or placement of 

the child within a reasonable period of time and 

termination of the parental rights would best serve 

the needs and welfare of the child.

* * *

(8) The child has been removed from the care of the 

parent by the court or under a voluntary agreement 

with an agency, 12 months or more have elapsed 

from the date of removal or placement, the 

conditions which led to the removal or placement of 

the child continue to exist and termination of 

parental rights would best serve the needs and 

welfare of the child.

* * *

(b) Other considerations.―The court in terminating 

the rights of a parent shall give primary consideration to 

the developmental, physical and emotional needs and 

welfare of the child. The rights of a parent shall not be 

terminated solely on the basis of environmental factors 

such as inadequate housing, furnishings, income, clothing 

and medical care if found to be beyond the control of the 

parent. With respect to any petition filed pursuant to 

subsection (a)(1), (6) or (8), the court shall not consider 

any efforts by the parent to remedy the conditions 

described therein which are first initiated subsequent to 

the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). “Satisfaction of any one 

subsection of Section 2511(a), along with consideration of Section 2511(b), 

is sufficient for involuntary termination of parental rights.” In re K.Z.S., 

946 A.2d 753, 758 (Pa.Super. 2008). 
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“Under [S]ection 2511, the trial court must engage in a bifurcated 

process.” In re I.J., 972 A.2d 5, 10 (Pa.Super. 2009). 

The initial focus is on the conduct of the parent. The party 

seeking termination must prove by clear and convincing 

evidence that the parent’s conduct satisfies at least one of 

the...statutory grounds delineated in section 2511(a). If 

the trial court determines that the parent’s conduct 

warrants termination under section 2511(a), then it must 

engage in an analysis of the best interests of the 

child...under section 2511(b), taking into primary 

consideration the developmental, physical, and emotional 

needs of the child. 

* * *

[A] best interest of the child analysis under [section] 

2511(b) requires consideration of intangibles such as love, 

comfort, security, and stability. To this end, this Court has 

indicated that the trial court must also discern the nature 

and status of the parent-child bond, paying close attention 

to the effect on the child of permanently severing the 

bond. Moreover, in performing a “best interests” 

analysis[, t]he court should also consider the importance 

of continuity of relationships to the child, because severing 

close parental ties is usually extremely painful. The court 

must consider whether a natural parental bond exists 

between child and parent, and whether termination would 

destroy an existing, necessary and beneficial relationship. 

Most importantly, adequate consideration must be given to 

the needs and welfare of the child. 

Id. at 10-12 (internal citations and quotation marks omitted). 

Section 2511 outlines certain irreducible minimum requirements of 

care that parents must provide for their children and a parent who cannot or 

will not meet the requirements may properly be considered unfit and have 

her parental rights terminated. In re B.L.L., 787 A.2d 1007 (Pa.Super. 

2001). 
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There is no simple or easy definition of parental 

duties. Parental duty is best understood in relation 

to the needs of a child. A child needs love, 

protection, guidance, and support. These needs, 

physical and emotional, cannot be met by a merely 

passive interest in the development of the child. 

Thus, this [C]ourt has held that the parental 

obligation is a positive duty which requires 

affirmative performance.

This affirmative duty encompasses more than a 

financial obligation; it requires continuing interest in 

the child and a genuine effort to maintain 

communication and association with the child.

Because a child needs more than a benefactor, 

parental duty requires that a parent exert [herself] 

to take and maintain a place of importance in the 

child’s life.

Parental duty requires that the parent act affirmatively 

with good faith interest and effort, and not yield to every 

problem, in order to maintain the parent-child relationship 

to the best of ...her ability, even in difficult circumstances. 

A parent must utilize all available resources to preserve 

the parental relationship, and must exercise reasonable 

firmness in resisting obstacles placed in the path of 

maintaining the parent-child relationship. 

In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 

718, 872 A.2d 1200 (2005) (internal citations omitted). Accordingly, “a 

parent’s basic constitutional right to the custody and rearing of...her child is 

converted, upon the failure to fulfill...her parental duties, to the child’s right 

to have proper parenting and fulfillment of his...potential in a permanent, 

healthy, safe environment.” Id. at 856. 

“When conducting a bonding analysis, the court is not required to use 

expert testimony. Social workers and caseworkers can offer evaluations as 
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well. Additionally, Section 2511(b) does not require a formal bonding 

evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (internal 

citations omitted). “Above all else[,] adequate consideration must be given 

to the needs and welfare of the child. A parent’s own feelings of love and 

affection for a child, alone, do not prevent termination of parental rights.” 

Id. (internal citations omitted). Further, “the general rule disfavoring 

separation of siblings is not controlling” in a termination case. In re R.P., 

956 A.2d 449, 458 (Pa.Super. 2008). Rather, the court has discretion to 

place siblings separately if it serves their best interests, as “[t]he health, 

safety, and welfare of each child supersede all other considerations.” Id.

Instantly, the trial court explained:

Children were adjudicated dependent on November 7, 

2014. The record demonstrated Mother’s ongoing 

unwillingness to provide parental care or control for 

Children; to perform any parental duties and a failure to 

remedy the conditions that brought Children into care. 

The [c]ourt found clear and convincing evidence that 

termination of Mother’s parental rights would be in the 

best interest of Children pursuant to 23 Pa.C.S.A. § 

2511(a)(1), (2), (5), and (8) and 23 Pa.C.S.A. § 2511(b).

At the [t]ermination [h]earing, Dr. William Russell testified 

in reference to his Parental Capacity Evaluation of Mother 

which occurred on January 15, 2016. Dr. Russell testified 

that at the time of the evaluation he had concluded that 

Mother was not able to provide safety to her children due 

to her mood instability. Dr. Russell testified that Mother 

required consistent mental health treatment to achieve the 

mood stability required for her to provide safety for her 

Children. Dr. Russell testified that as a result of Mother’s 

lack of mood stability she was unable to resolve housing 

issues and had difficulties interacting with other people. 

Dr. Russell testified that Mother had been diagnosed as 
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being [bipolar] and having symptoms of a borderline 

personality disorder requiring that Mother receive 

consistent mental health treatment.

At the termination hearing, the CUA Representative 

testified that Mother was made aware of her SCP 

objectives. The objectives identified for Mother were (1) 

stabilize her mental health; (2) to complete intake at the 

Wedge Medical Center (“Wedge”); (3) to improve 

parenting/coping skills; (4) to continue to actively 

participate in all parenting, anger management counseling 

sessions; (5) to maintain her relationship with Children; 

(6) to attend her scheduled visits with Children; (7) to 

maintain safe and stable housing; (8) to enroll in the 

Achieving Reunification Center (“ARC”).

The CUA Representative testified that Mother had failed to 

attend domestic violence training, which was significant 

due to a history of domestic violence between Mother and 

Father. The CUA Representative testified it was her belief 

that Mother and Father lived together. The CUA 

Representative testified that Mother was inconsistent with 

her mental health treatment. The CUA Representative 

testified that the pre-adoptive parent of T.Q.K.W.T. 

(“Maternal Aunt”), was able to provide the child with love, 

safety and stability and support. The CUA Representative 

testified that T.Z.W.T. and T.Q.T.W. were in the care of 

their maternal grandmother and that she was able to 

provide love, safety, stability and support. The CUA 

Representative testified that Children were bonded to their 

pre-adoptive foster parents. The CUA Representative 

testified that changing Children’s goals from reunification 

to adoption would not cause irreparable harm to Children. 

The CUA Representative also testified that it would be in 

Children’s best interests to be adopted. The CUA 

Representative testified that it was in Children’s best 

interests that Mother’s parental rights be terminated. The 

CUA Representative testified that the termination of 

Mother’s parental rights would not cause Children 

irreparable harm.

This [c]ourt found the testimony of the CUA 

Representative and Dr. Russell to be credible and accorded 

[their] testimonies great weight. Based upon this 
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testimony and the documents in evidence, this [c]ourt 

found clear and convincing evidence to terminate Mother’s 

parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), 

(5) and (8) as Mother failed to remedy the conditions that 

brought her Children into care. The [c]ourt further 

concluded that the termination of Mother’s parental rights 

would be in the best interest of Children pursuant to 23 

Pa.C.S.A. § 2511(b). This [c]ourt concluded that the 

respective pre-adoptive foster parents were able to meet 

Children’s needs.

(Trial Court Opinion at 5-8) (internal citations and footnote omitted). 

Additionally, the court stated on the record at the conclusion of the 

termination hearing:

All right. Based upon the testimony I heard, the exhibits 

presented, which I accept, and based upon the credibility 

of the CUA worker, Dr. Russell, and the visitation coach, I

find them to be credible. I do not find the testimony of 

Father or Mother to be credible. They—I’m not convinced 

that they’re not seeing each other. Whether they’re living 

together or not, it’s curious that they’re both using [the 

same] address....

Father as late as 2016, it’s appearing on his—his criminal 

extract. He gave the [c]ourt that address.... And Mr. 

Jenkins, the visitation coach, said he was driving Mother 

home, and passed in front of the house and who happened 

to be there? [Father]. And that was in November. So, 

she was living there in November. He was living there. 

And I’m convinced he’s probably living there to—to this 

day in violation of the [c]ourt order as late as November 

14th, when I heard the case, and [M]aternal 

[G]randmother testified that Mother was taking the kids to 

see Father.

And there was a violent history. She testified to that. And 

there’s a safety issue. Don’t tell me there’s no safety issue 

with him around and—and a domestic violence history that 

[C]hildren if—if they were reunited with either parent has 

gone unaddressed. There’s—there’s never been any 

domestic violence counseling.
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As far as—you’re saying this is a housing issue. The—Dr. 

Russell clearly testified mental health is a big issue in this 

case. And she stopped going in June on her own and 

never re-enrolled according to her because nobody called 

her. Well, obviously, she needs continuing mental health 

treatment.

And I mean Father’s testimony is just totally incredible 

with regard to where he lives and what the living 

arrangements are. ... 

As far as the bond—the bonding of [M]other, I believe 

there’s a bond. But it’s not a parental bond. It—it’s a 

bond of someone that—that apparently has an attachment 

to [C]hildren. And they’re glad to see her when—when she 

gets there. But she’s not a parent at this point. Hasn’t 

been for the last two-and-a-half years that these children 

have been in placement.

(N.T. Termination Hearing, 3/7/17, at 165-67). The record supports the 

court’s analysis. 

The record makes clear Children’s primary bond is with their 

respective pre-adoptive parents. (See id. at 92; 118-19; 167). As well, the 

fact that T.Q.K.W.T. is in a separate pre-adoptive home is not controlling, 

where his continued placement with Maternal Aunt serves his best interests. 

See In re R.P., supra. Further, the record supports each of the facts 

outlined by DHS in its “Statement of Facts” attached to its termination 

petition. That the court referred to the “Statement of Facts” in its opinion,

over other places in the record, is of no moment, where the record supports 

the court’s decision to terminate Mother’s parental rights to Children under 

Section 2511(a)(1), (2), (5), (8), and (b). See In re Adoption of K.J., 
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supra.

Notwithstanding the formal statement of her fourth issue, Mother 

argues the court failed to appoint separate legal counsel for Children to 

express their preferred outcome in this case. Mother concludes that recent 

changes in the law require this Court to reverse and remand for the 

appointment of separate legal counsel and a de novo review of the 

appropriateness of the goal change6 and termination decision. We agree 

with Mother on this issue but only with respect to the oldest child, 

T.Q.K.W.T.

Section 2313 of the Domestic Relations Code governs representation 

of Children in a contested termination proceeding, in pertinent part, 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.

____________________________________________

6 Mother mentions, but fails to develop, a separate cogent argument 

concerning the appropriateness of the goal change decision. Instead, she

focuses her argument on the court’s failure to appoint separate legal counsel 

to express Children’s preferred outcome in this case. 
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23 Pa.C.S.A. § 2313(a). Our Supreme Court recently interpreted and 

applied Section 2313(a) as follows: 

[A] majority of the Court agreed on several points: (a) in 

the context of contested termination-of-parental-rights 

(“TPR”) proceedings, the first sentence of Section 2313(a) 

requires that the common pleas court appoint an attorney 

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

preferred outcome; (b) where there is a conflict between 

the child’s legal interests and his best interests, an 

attorney-guardian ad litem (an “attorney-GAL”), who 

advocates for the child’s best interests, cannot 

simultaneously represent the child’s legal interests; and (c) 

in such a circumstance, the failure to appoint a separate 

attorney to represent the child’s legal interests constitutes 

structural error, meaning it is not subject to a harmlesserror analysis.

In re T.S. at ___, 192 A.3d at 1082 (summarizing agreed-upon positions of

In re Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172 (2017)) (internal 

footnotes omitted). Our Supreme Court has made clear: “The statutory 

right under Section 2313(a) belongs to the child, not the parent.” T.S., 

supra at ___, 192 A.3d at 1087. Thus, “the failure of any party, including 

Mother, to affirmatively request separate counsel for the children 

cannot...[constitute] waiver.” Id. 

Nevertheless, “if the wishes of the child cannot be ascertained [due to 

a child’s young age], the GAL has no duty to advise the court of such wishes. 

For purposes of the proceeding, such wishes do not exist.” Id. at ___, 192 

A.3d at 1089-90. Consequently, where an attorney-GAL is appointed to 

represent the child’s best interests, Section 2313(a) does not require the 

appointment of separate legal counsel to advance child’s legal interests, if
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the child is too young to articulate a “preferred outcome.” Id. (establishing 

presumption that child three years of age or younger cannot form 

subjective, articulable preference that would necessitate appointment of 

separate legal counsel to advocate during termination proceeding). 

Additionally, the court’s failure to appoint separate legal counsel does 

not constitute reversible error, so long as the child is represented by an 

attorney-GAL and the record makes clear no conflict exists between the 

child’s best interests and legal interests. See, e.g., In re K.R., supra 

(holding court’s failure to appoint separate counsel to represent children’s 

legal interests did not constitute reversible error, where attorney-GAL 

expressed children’s preferences on record and confirmed no conflict existed 

between children’s legal and best interests); In re G.M.S., 193 A.3d 395 

(Pa.Super. 2018) (declining to remand for appointment of separate legal 

counsel, where expert testified at termination hearing that she interviewed 

child who preferred to be adopted by maternal grandmother; child’s legal 

interests were aligned with child’s best interests). 

Instantly, on October 27, 2014, the court appointed the Defender 

Association of Philadelphia, Child Advocacy Unit, to serve as counsel and GAL 

for Children throughout all of the relevant proceedings in this case. The 

court did not appoint separate legal counsel for Children for the termination 

proceedings. At the time of the termination hearing on March 7, 2017, 

T.Q.K.W.T. was five years old, T.Q.T.W. was three years old, and T.Z.W.T. 
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was two years old. 

Initially, we observe that although the issue concerning appointment 

of separate legal counsel for Children was raised for the first time on appeal, 

we can review it. See In re T.S., supra. Nevertheless, that claim merits 

no relief concerning the two Children, T.Q.T.W. and T.Z.W.T., as they were 

too young to articulate a preferred outcome at the time of the termination 

hearing. See id. Regarding the oldest child, T.Q.K.W.T., however, the 

record shows the court failed to appoint separate legal counsel, as required 

under Section 2313(a) and current prevailing law. See 23 Pa.C.S.A. § 

2313(a); In re T.S., supra. Significantly, the record lacks any evidence of 

T.Q.K.W.T.’s preferred outcome in this matter, even though the record 

demonstrates that his primary bond is with Maternal Aunt, who is meeting 

all of his needs. 

Under these circumstances, we must vacate the termination order

regarding T.Q.K.W.T., without prejudice, and remand the case for further 

proceedings. Upon remand, the court shall appoint separate counsel to 

represent T.Q.K.W.T.’s legal interests. After review of the prior proceedings 

and consultation with T.Q.K.W.T., legal-interests counsel shall notify the 

court of T.Q.K.W.T.’s preferred outcome and whether a new hearing is 

necessary for an opportunity for counsel to advocate on T.Q.K.W.T.’s behalf. 

The court shall conduct a new hearing only if a new hearing is necessary to 

explore T.Q.K.W.T.’s preferred outcome in comparison to his best interests. 
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See In re: Adoption of T.M.L.M., 184 A.3d 585 (Pa.Super. 2018)

(vacating and remanding for appointment of legal-interests counsel, where 

child was five years old at termination hearing, and no evidence in record 

showed consideration of child’s preferred outcome). Compare In re K.R., 

supra; In re G.M.S., supra. Accordingly, we affirm the court’s orders as to 

T.Z.W.T. and T.Q.T.W. We also affirm the court’s decision under Section 

2511(a) and (b) with respect to T.Q.K.W.T., but we must vacate that

termination order and remand for appointment of counsel for T.Q.K.W.T., 

under 23 Pa.C.S.A. § 2313(a), and for reconsideration of that termination 

order under current prevailing law, without prejudice to reinstate the 

termination order following further evaluation and reconsideration. 

Orders affirmed as to T.Z.W.T. and T.Q.T.W.; order regarding 

T.Q.K.W.T. is vacated without prejudice and his case is remanded for the 

appointment of legal-interests counsel under 23 Pa.C.S.A. § 2313(a) and for 

further evaluation and reconsideration. Jurisdiction is relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/12/19