J-S45018-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE ADOPTION OF: A.G.R., A 

MINOR 

APPEAL OF T.R., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1223 MDA 2023

Appeal from the Decree Entered August 7, 2023

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

No(s): 2021-2199

IN RE ADOPTION OF: A.T.R., A 

MINOR

APPEAL OF: T.R., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1224 MDA 2023

Appeal from the Decree Entered August 7, 2023

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

No(s): 2021-02200

BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED: FEBRUARY 2, 2024

T.R. (Mother) appeals1from the decrees, entered in the Court of 

Common Pleas of Lancaster County Orphans’ Court Division, granting a 

petition for adoption and involuntarily terminating her parental rights to her 

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* Former Justice specially assigned to the Superior Court.

1 On September 18, 2023, our Court sua sponte consolidated the appeals at 

1223 MDA 2023 and 1224 MDA 2023. See Pa.R.A.P. 513.
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two minor children, A.G.R. (born 1/2014) and A.T.R. (born 3/2008) 

(collectively, Children). After careful review, we reverse and remand with 

instructions.

Mother and A.R. (Father) began dating in 2000; they had three children 

together, A.R.,2 A.T.R., and A.G.R. In July 2019, the parties separated. In 

February 2020, Father filed a protection from abuse (PFA) petition against 

Mother. On February 24, 2020, the court entered a temporary PFA order 

requiring Mother to stay away from Father’s residence, but permitting the 

parties to mutually agree that Mother have contact with Children “through a 

third-party.”

3 Temporary PFA Order, 2/24/20, at ¶¶ 3, 5. During the time 

that the temporary PFA was in effect (2/24/20-9/2/20), Mother was charged 

with indirect criminal contempt for contacting Father in violation of the PFA.

On February 28, 2020, Mother filed a pro se custody complaint seeking 

custody of Children. Mother failed to appear at a scheduled custody 

conference on June 15, 2020, and, as a result, Father was awarded sole legal 

and physical custody of Children, with Mother being granted partial physical 

custody as agreed to by the parties. 

Following a PFA hearing, on September 2, 2020, the court entered a 

final PFA order, by agreement and without admission of wrongdoing, against 

Mother protecting Children and Father. The order, which was in effect until 

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2 A.R. is over the age of 18 and, thus, not a party to this matter.

3 Paternal grandmother and paternal aunt were the designated intermediaries.
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September 2, 2021, incorporated the terms of the June 15, 2020 custody 

order and also included the following provision: “Non-harassing, nonthreatening, email communication about the [C]hildren only is authorized 

between the parties.” Final PFA Order, 9/2/20, at ¶ 5 (Father’s Exhibit 5).

On October 25, 2020, Father and Stepmother married. Children have 

resided with Father and Stepmother since July 2019. On August 4, 2021, 

Father and Stepmother filed a petition to involuntarily terminate Mother’s 

parental rights to Children and for Stepmother to adopt Children. See 23 

Pa.C.S.A. §§ 2512(a)(1). On August 8, 2021, A.T.R. signed a consent to be 

adopted by Stepmother.

Four hearings were held on March 15, 2022, November 22, 2022, 

January 27, 2023, and April 14, 2023. On August 7, 2023, the trial court 

entered decrees involuntarily terminating Mother’s parental rights to Children 

pursuant to subsections 2511(a)(1) and (b) of the Adoption Act.4 The court 

found that Mother “did not demonstrate reasonable firmness in attempting to 

overcome any obstacles Father implemented to prevent her from seeing 

Children.” Trial Court Opinion, 9/26/23, at 18. 

Mother filed a contemporaneous notice of appeal and court-ordered 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. See 

Pa.R.A.P. 1925(a)(2)(i). Mother raises the following issues for our 

consideration:

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4 23 Pa.C.S.A. §§ 2101-2938.
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(1) Whether the [c]ourt erred in finding that Petitioner[]s 

met their burden under 23 Pa.C.S.A. § 2511(a)(1) 

when Petitioner Father places obstacles in Mother’s 

path [to] prevent [her having] contact with 

[C]hildren?

(2) Whether the [c]ourt erred in finding that terminati[ng 

Mother’s] parental rights met the needs and welfare 

of [C]hildren under § 2511(b)?

Appellant’s Brief, at 4. 

Before turning to Mother’s claims on appeal, we must first sua sponte

address Children’s right to counsel in the underlying contested termination of 

parental rights proceedings. Pursuant to 23 Pa.C.S.A. § 2313:

(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.A. § 2313(a) (italics added). Moreover, “a single attorney cannot 

represent a child’s best interest and legal interest if those interests conflict.” 

In re Adoption of K.M.G., 240 A.3d 1218, 1235 (Pa. 2020) (citation 

omitted). While “a child’s legal interests . . . are synonymous with the child’s 

preferred outcome,” a child’s best interests must be determined by the trial 

court, with guidance from “statutes and rules.” In re Adoption of L.B.M., 

161 A.3d 172, 174-75 (Pa. 2017). See also In re T.S., 192 A.3d 1080, 1082 

n.2 (Pa. 2017) (citations omitted) (legal interests involves attorney expressing

child’s wishes regardless of whether attorney agrees with child’s 

recommendation and best interests involves guardian ad litem expressing 
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what guardian ad litem believes is best for child’s care, protection, safety, and 

wholesome physical and mental development, regardless of whether child 

agrees).

By order, effective January 11, 2022, the court appointed Catherine I. 

Roland, Esquire, as guardian ad litem for Children, stating that Attorney 

Roland was “to notify the [c]ourt and Petitioners, within 20 days, whether 

separate legal counsel needed to be appointed to represent Children.” See 

Order, 1/14/22.5 When Attorney Roland later requested that counsel be 

appointed to represent Children’s legal interests, the court appointed Jeffrey 

Shank, Esquire, on November 4, 2022, as legal counsel for Children. However, 

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5 However, at a November 3, 2022 proceeding, almost 10 months later, the 

court acknowledged the following:

[I]n a circumstance where there is a contest going on, we have to 

appoint a guardian ad litem for the [Children], and, potentially, a 

legal interest attorney as well. This complicates this.

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The first step would be that of a [g]uardian ad litem. If the 

[g]uardian ad litem determines that either child[] ha[s] an 

intended outcome and that differs from what the [g]uardian ad 

litem would be supporting, that triggers the need for the legal 

interest attorney.

It's a two-step process. We’ll get a [g]uardian ad litem on board 

first. You can obviously[] inform stepmom and dad that they will 

be hearing from an attorney that would like to speak to the 

children in private.

N.T. Proceeding, 11/3/22, at 10-11 (emphasis added).
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on April 20, 2023, Attorney Shank was removed as legal counsel for A.G.R.,

when it became apparent that Children’s legal interests diverged. See N.T. 

Termination Hearing, 11/22/22, at 6 (Attorney Roland stating “early on I 

thought I could do both[, I later] thought there was a conflict” between 

A.T.R.’s best interests and legal interests) (emphasis added).

6

 

In K.M.G., supra, our Supreme Court addressed the appointment of 

counsel to represent children in contested termination of parental rights 

proceedings, with a focus on the trial court’s role in appointing an attorney to 

represent the child’s legal interest and an appellate court’s scope of review of 

those appointments. The Court concluded that “while an appellate court 

should verify that the orphans’ court appointed counsel to represent the child’s 

legal interests, it may not assess sua sponte the performance of that 

representation.” Id., 240 A.3d at 1223. In reaching its holding, the Court 

made the following pronouncements specifically with regard to the trial court’s 

role in such matters:

[W]here an orphans’ court has appointed a GAL/Counsel to 

represent both the child’s best interests and legal interests, 

appellate courts should review sua sponte whether the 

orphans’ court made a determination that those interests 

did not conflict. We emphasize that appellate review of this 

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6 Then, because A.G.R.’s legal interests aligned with her best interests, 

Attorney Roland was appointed to represent A.G.R.’s legal interests. See In 

the Int. of H.H.N., 296 A.3d 1258 (Pa. Super. 2023) (where child’s legal and 

best interests do not diverge in termination proceeding, attorney-GAL 

representing child’s best interests can also fulfill role of attorney appointed 

under section 2313(a) to represent child’s legal interests).
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question does not involve second-guessing whether 

GAL/Counsel[,] in fact[,] had a conflict . . . as discussed in the 

next section of this opinion, but solely whether the orphans’ 

court made the determination in the first instance.

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Accordingly, in fulfilling its duty under [s]ection 2313(a) as 

construed by this Court, the orphans’ court must determine 

whether counsel can represent the dual interests before 

appointing an individual to serve as GAL/Counsel for a 

child. Given the essential nature of the GAL/Counsel’s ability to 

represent a child without conflict and this Court’s mandate that 

the orphans’ court make that determination prior to 

appointment, we conclude that appellate courts should verify 

that the orphans’ court indicated that the attorney could 

represent the child’s best interests and legal interests without 

conflict.

Id. at 1235-36 (emphasis added). 

Here, the Orphans’ Court delegated its prescribed role of determining 

whether counsel could represent the dual interests of Children to Attorney 

Roland.7 See N.T Termination Proceeding, 11/22/22, at 8 (Attorney Roland 

stating to A.T.R. that she “represent[s] what [she] think[s] is best,” to which 

trial judge responded, “Whatever you think it best.”). This is in direct 

contravention of Supreme Court precedent mandating that such a 

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7 We note that the mandated appointment of counsel for children in contested 

termination cases is satisfied by the appointment of a guardian ad litem who 

is an attorney. See L.B.M., supra at 174. Interestingly, however, the court’s 

appointment of Attorney Roland was specifically stated to fulfill the role of 

guardian ad litem, not legal counsel, the latter of which is mandated in section 

2313(a). Thus, based on the language in the court’s order, it appears that 

the court intended her to act as a guardian ad litem advocating for Children’s 

best interests.
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determination is to be made by the Orphans’ Court “in the first instance.” Id.

at 1236. Thus, in light of our duty to conduct a limited sua sponte review of 

the matter, id. at 1223, we must reverse and remand to the Orphans’ Court

to comply with the procedure as set forth in K.M.G. prior to appointing a GAL 

or counsel for Children and holding a new termination proceeding.

8 See In 

the Interest of K.N.L., 284 A.3d 121, 151 (Pa. 2022); see also L.B.M., 

supra at 183 (“In . . . t[ermination of] p[arental] r[ights] cases[,] critical 

rights are at stake. . . . [O]ur General Assembly has decided that counsel for 

the child is required because of the primacy of children’s welfare, the 

fundamental nature of the parent-child relationship[,] and the permanency of 

termination.”).

Decrees reversed. Case remanded to Orphans’ Court for hearing de 

novo and proceedings consistent with this decision.9 Jurisdiction relinquished.

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8 We are also mindful of the fact that at least one hearing was started in the 

matter on March 15, 2022, prior to Attorney Shank being appointed as

Children’s legal counsel, where Attorney Roland presumably represented 

Children. Again, we question whether Children’s legal and best interests were 

in conflict at that point, a question that should have been determined, prior 

to any proceeding, by the trial court.

9 Because we are remanding the matter, we need not reach the merits of 

Mother’s issues on appeal.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 2/2/2024