J-A09042-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: L.M.S.B., A 

MINOR

APPEAL OF: J.B., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1430 WDA 2023

Appeal from the Order Entered November 8, 2023

In the Court of Common Pleas of Cambria County Orphans' Court at 

No(s): 2023-995-IVT

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED: July 11, 2024

Appellant J.B. (Mother) appeals1from the order granting the petition 

filed by Cambria County Children & Youth Services (the Agency) to terminate 

Mother’s parental rights to L.M.S.B. (Child), born in February of 2023. On 

appeal, Mother contends that the Agency failed to prove by clear and 

convincing evidence that Mother’s conduct warranted termination of her 

parental rights. Following careful review, we vacate the order and remand 

with instructions. 

By way of background, the Agency filed a petition to involuntarily 

terminate Mother’s parental rights on August 23, 2023. Following an 

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1 We note that although the trial court also terminated the parental rights of

S.G. and J.C. (collectively, Putative Fathers), neither Putative Father is a party 

to the instant appeal.
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evidentiary hearing on November 6, 2023, the trial court entered an order 

terminating Mother’s parental rights. 

Appellant filed a timely notice of appeal and a Pa.R.A.P. 1925(a)(2)(i)

statement. The trial court filed a Rule 1925(a) opinion incorporating its

remarks at the conclusion of the November 6, 2023 evidentiary hearing. See 

Trial Ct. Op., 12/13/23, at 2.2 

Appellant raises the following issue for our review:

Whether the [trial] court abused its discretion or committed an 

error of law when it granted the petition to involuntarily terminate 

parental rights and ordered [Mother’s] rights terminated to [] 

Child forever, without clear and convincing evidence that 

[Mother’s] conduct warranted termination under 23 Pa.C.S. § 

2511(a)[?]

Mother’s Brief at 4 (formatting altered).

The standard of review in termination of parental rights cases 

requires appellate courts to accept the findings of fact and 

credibility determinations of the trial court if they are supported 

by the record. If the factual findings are supported, appellate 

courts review to determine if the trial court made an error of law 

or abused its discretion. A decision may be reversed for an abuse 

of discretion only upon demonstration of manifest 

unreasonableness, partiality, prejudice, bias, or ill-will. The trial 

court’s decision, however, should not be reversed merely because 

the record would support a different result. We have previously 

emphasized our deference to trial courts that often have first-hand 

observations of the parties spanning multiple hearings.

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2 The Hon. Norman A. Krumenacker, III, the presiding judge over the 

November 6, 2023 hearing and author of the trial court’s Rule 1925(a) opinion,

retired from the Cambria County Court of Common Pleas effective January 1, 

2024.
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations omitted and formatting 

altered). 

Before we can review the merits of Mother’s sole issue on appeal, we 

must first review whether Child’s guardian ad litem, Suzann Lehmier, Esq., 

was able to represent Child’s best interests and legal interests without conflict. 

Indeed, Section 2313 of the Adoption Act provides, in relevant part:

(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).

This Court has held as follows:

Our Supreme Court has explained that “Section 2313(a) requires 

the appointment of counsel who serves the child’s legal interests 

in contested, involuntary TPR proceedings.” In re Adoption of 

L.B.M., 161 A.3d 172, 180 (Pa. 2017) (footnote omitted).

Further, the L.B.M. Court held that “the failure to appoint counsel 

for a child involved in a contested, involuntary termination of 

parental rights proceeding is a structural error and is not subject 

to harmless error analysis.” Id. at 183. Further, the failure to 

appoint counsel to represent a child’s legal interests pursuant to

Section 2313(a) is a non-waivable error. [In re T.S., 192 A.3d 

1080, 1087 (Pa. 2018)]. Subsequently, the Supreme Court 

clarified that “trial courts are obligated by Section 2313(a) to 

appoint counsel to serve 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 termination of parental 

rights proceedings.” In re Adoption of K.M.G., 240 A.3d 1218, 

1233-34 (Pa. 2020) (citation omitted). In the context of TPR 

proceedings, the child’s “legal interests” is synonymous with “the 
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child’s preferred outcome[.]” T.S., 192 A.3d at 1082 (footnote 

omitted); see also Pa.R.J.C.P. 1154, cmt.

Further, “where a child’s legal and best interests do not diverge in 

a termination proceeding, an attorney-[guardian ad litem]

representing the child’s best interests can also fulfill the role of 

the attorney appointed per Section 2313(a) to represent the 

child’s legal interests.” T.S., 192 A.3d at 1088 (citation omitted). 

However, “where there is no conflict between a child’s legal and 

best interests, an attorney-guardian ad litem representing the 

child’s best interests can also represent the child’s legal interests. 

Id. at 1092; see also K.M.G., 240 A.3d at 1235-36. As such, 

our Supreme Court has held that before appointing an individual 

to serve as both guardian ad litem (GAL) and legal counsel for a 

child, the trial court “must determine whether counsel can 

represent the dual interests . . . .” K.M.G., 240 A.3d at 1236.

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

both the child’s best interests and legal interests, appellate courts 

should review sua sponte whether the [trial] court made a 

determination that those interests did not conflict.” Id. at 1235.

This Court has concluded that where one attorney represents both 

the child’s best and legal interests at a TPR hearing, but the trial 

court did not place its determination that those interests did not 

conflict on the record, the TPR decree should be vacated and the 

case should be remanded to the trial court for further proceedings. 

Interest of A.J.R.O., 270 A.3d 563, 570-71 (Pa. Super. 2022).

Upon remand, if the trial court “determines that no conflict exists, 

it shall re-enter” the TPR decree, but if the trial court determines 

that a conflict exists, it must appoint separate legal counsel for 

the child and hold a new TPR hearing to “provide [child’s] counsel 

an opportunity to advocate on behalf of [the child’s] legal 

interests.” Id. at 571.

Interest of H.H.N., 296 A.3d 1258, 1263-64 (Pa. Super. 2023) (emphasis in 

original).

In the instant case, the trial court appointed Attorney Lehmier as “courtappointed counsel for [] Child throughout the proceedings.” Trial Ct. Or., 

8/25/23 (some formatting altered). At the conclusion of the November 6, 
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2023 evidentiary hearing, Attorney Lehmier made the following statement to 

the trial court: “Your Honor, as the attorney for [] Child, I would, based on 

her age, represent to the [c]ourt there be no conflict between her best 

interests and legal interests.” N.T., 11/6/23, at 73. 

However, the trial court did not make an on-the-record determination 

regarding whether Attorney Lehmier could represent Child’s best interests and 

legal interests without conflict. See K.M.G., 240 A.3d at 1235-36. For these 

reasons, we are constrained to vacate the trial court’s order terminating 

Mother’s parental rights and remand the case for further proceedings.3 See 

A.J.R.O., 270 A.3d at 570-71.

Upon remand, the trial court shall make an on-the-record determination 

as to whether Attorney Lehmier can represent Child’s best interests and legal 

interests without conflict. Should the trial court reach the determination that 

no conflict exists, it shall re-enter the order terminating Mother’s parental 

rights. See H.H.N., 296 A.3d 1264 (citing A.J.R.O., 270 A.3d at 571). If the 

trial court determines that a conflict exists, it shall appoint separate counsel 

to represent Child’s legal interests and hold a new termination of parental 

rights hearing to “provide [Child’s] counsel an opportunity to advocate on 

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3 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 Lehmier may represent both

of those interests will result in a delay, this Court cannot make this 

determination on the trial court’s behalf. See A.J.R.O., 270 A.3d at 570-71.
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behalf of [Child’s] legal interests.” See id. (quoting A.J.R.O., 270 A.3d at 

571).

Order vacated. Case remanded with instructions. Jurisdiction 

relinquished.

7/11/2024