J-A23034-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: A.M.W., A 

MINOR

APPEAL OF: M.J.G.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 519 MDA 2021

Appeal from the Decree Entered March 31, 2021

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

No(s): 18 ADOPT 2020

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY MURRAY, J.:FILED: FEBRUARY 14, 2022

After carefully reviewing the record, I respectfully dissent on the basis 

that the orphans’ court’s failure to appoint counsel for Child was contrary to 

Child’s best interests.

The Majority found Former Stepfather waived this claim because he “did 

not raise an objection to or submit any filing and/or request as to the Child’s 

lack of representation with the trial court subsequent to the termination 

proceedings.” Maj. at 21. However, our Supreme Court has held this claim 

is not waivable. See In re Adoption of K.M.G., 240 A.3d 1218, 1234-35 

(Pa. 2020) (appellate court may raise issue of child’s right to counsel sua 

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* Former Justice specially assigned to the Superior Court.
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sponte); In re T.S., 192 A.3d 1080, 1087 (Pa. 2018) (issue of whether 

orphans’ court erred in not appointing counsel for child is non-waivable). 

The Majority further concluded that even if not waived, the issue lacked 

merit. Maj. at 21-22. It stated, “[w]hile permissible, the statute does not 

require that counsel be appointed beyond the termination proceedings.” Id.

at 22 (citation omitted). However, the Majority does not address whether the 

orphans’ court acted in Child’s best interests in not appointing counsel.

Previously, the orphans’ court appointed counsel to represent Child in 

the uncontested termination of biological father’s parental rights, where Child 

had no relationship with biological father. Id. at 3, 22. Conversely, Child 

lacked representation in the adoption proceedings, where Child had a strong 

relationship with Former Stepfather — who is the only father Child had known 

— and the record contains little information about Child’s relationship with 

Current Stepfather. Id. at 3; Orphans’ Court Opinion, 3/29/21, at 1-2. My 

review discloses no dispute that Former Stepfather was in loco parentis1to 

Child, paid child support, and shared legal and physical custody of Child after 

separating from Mother. Id. The record also suggests that Current Stepfather 

filed the petition to adopt Child less than two years after marrying Mother in 

order to circumvent Mother’s custody agreement with Former Stepfather. 

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1 A person stands in loco parentis with respect to a child when he or she 

“assum[es] the obligations incident to the parental relationship without going 

through the formality of a legal adoption.” K.X. v. S.L., 157 A.3d 498, 505

(Pa. Super. 2017) (citations omitted).
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Child was 11 years old at the time of the adoption proceedings, yet the 

orphans’ court opinion is devoid of any reference to Child’s views about being 

adopted by Current Stepfather, or any examination of whether adoption was 

in Child’s best interests. In my view, the orphans’ court failed to act in Child’s 

best interests by not appointing counsel for Child in the adoption proceedings. 

See K.M.G., 240 A.3d at 1234 (“counsel [ ] serve[s] the critical role of a 

child’s attorney, zealously advocating for the legal interests of the child who 

otherwise would be denied a voice in the [ ] proceedings.”); 23 Pa.C.S.A. § 

2313(a). 

This Court was presented with a similar scenario in In re: Adoption of 

R.A.B., 1364 EDA 2007 (Pa. Super. May 9, 2008) (unpublished 

memorandum). The decision is non-precedential, but instructive, where a 

mother parented her child conceived by artificial insemination with her 

partner, who stood in loco parentis to the child. Id. at 1-2. The relationship 

between mother and her partner ended when the child was three; the mother 

subsequently married and her husband sought to adopt the child. Id. at 2. 

The partner successfully intervened in the adoption proceedings, and after an 

8-day trial, the orphans’ court granted the husband’s adoption petition. Id. 

The partner appealed, and although we upheld the orphans’ court’s

determination regarding the merits of husband’s petition, we vacated and 

remanded based on our concern that application of the Adoption Act had 
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vacated the custodial rights of the partner, who was in loco parentis to the 

child. Id. at 7-9. We stated:

[A]t the time the trial judge granted the petition of R.B. to adopt 

[the child], there were already two persons with legally 

enforceable parental rights. Thus, the decision of the trial court 

to grant R.B.’s petition to adopt R.A.B. either created a situation 

where R.A.B. has three legal parents, or effectively eliminated 

appellant’s parental rights without due consideration for the 

consequences. The failure to address those consequences is of 

particular significance to any consideration and resolution of the 

best interests of R.A.B., since, as recognized by counsel 

appointed to represent the interest of R.A.B, the experts 

produced by the respective parties were adamant that appellant’s 

relationship with R.A.B. should be maintained. 

Id. at 9 (emphasis added).

Here, while Former Stepfather’s custody was not court-ordered, Former 

Stepfather and Mother had adhered to a binding custody arrangement they 

negotiated and included in their legally enforceable post-nuptial agreement. 

While Child is older than the child in R.A.B., and has a longer-standing 

relationship with Former Stepfather, the orphans’ court, unlike the court in 

R.A.B., did not appoint counsel, and no one represented Child’s interests. In 

my view, because Former Stepfather stood in loco parentis to Child, the 

orphans’ court “effectively eliminated [Former Stepfather’s] parental rights 

without due consideration for the consequences.” Id. Accordingly, I would

vacate the adoption decree and remand for appointment of counsel to “serve 

the critical role of a child’s attorney, zealously advocating for the legal 

interests of the child[.]” K.M.G., supra at 1234. I therefore dissent.