J-A16027-17

2018 PA Super 203

*Retired Senior Judge assigned to the Superior Court.

IN RE: G.M.S., A MINOR

APPEAL OF: L.N.C., NATURAL 

MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 299 WDA 2017

Appeal from the Order January 30, 2017

In the Court of Common Pleas of Allegheny County 

Orphans’ Court at No(s): CP-02-AP-0000173-2016

IN RE: B.D.C., A MINOR

APPEAL OF: L.N.C., NATURAL 

MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 300 WDA 2017

Appeal from the Order January 30, 2017

In the Court of Common Pleas of Allegheny County 

Orphans’ Court at No(s): CP-02-AP-0000174-2016

IN RE: L.A.C., A MINOR

APPEAL OF: L.N.C., NATURAL 

MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 301 WDA 2017

Appeal from the Order January 30, 2017

In the Court of Common Pleas of Allegheny County 

Orphans’ Court at No(s): CP-02-AP-0000175-2016

BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER, J.*
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OPINION BY STRASSBURGER, J.: FILED JULY 11, 2018

In these consolidated appeals, L.N.C. (Mother) appeals from the orders 

entered January 30, 2017, in the Court of Common Pleas of Allegheny County, 

which terminated involuntarily her parental rights to her minor children, 

G.M.S. (born in 2007), B.D.C. (born in 2012), and L.A.C. (born in 2014) 

(collectively, “Children”). We affirm.

The certified record reveals the following. Mother is the biological 

mother of Children.1 Mother has never married and, prior to 2015, exercised 

sole legal and physical custody of Children. In the three years between March 

of 2012 and March 2015, the family was referred to the Allegheny County 

Office of Children, Youth and Families (CYF) eleven times. Eventually, on 

March 13, 2015, CYF opened a case and established safety goals for Mother; 

however, Mother failed to make significant progress and CYF became 

concerned about the safety of Children while they were in Mother’s care. On 

May 12, 2015, CYF filed an emergency custody application (ECA) and 

requested a shelter care hearing on behalf of Children. That hearing was held 

on May 15, 2015, and a shelter care order was entered. Under the terms of 

the order, legal custody of Children was transferred to CYS. G.M.S. was placed 

____________________________________________

1 Mother has a fourth child, M.C., born in April of 2016. M.C. was removed 

from Mother’s care at birth, adjudicated dependent in May of 2015, and placed 

in foster care. At the time of the termination hearing as to Children, M.C. was 

also in the care of maternal grandparents. She is not a subject of this appeal.
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in the physical custody of her biological father2, while B.D.C. and L.A.C. were 

placed in foster care. Mother was ordered to have no unsupervised contact 

with Children. On May 18, 2015, CYF filed a second ECA after discovering that 

Mother was violating the terms of the first order. Continued placement was 

ordered, with physical custody of B.D.C. and L.A.C. granted to Maternal 

Grandparents.

On June 2, 2015, CYF filed dependency petitions alleging that Children 

were without proper care or control. On June 16, 2015, CYF withdrew its 

petition with regard to G.M.S.; however, it chose to proceed on the petitions 

filed on behalf of B.D.C. and L.A.C. On August 4, 2015, both B.D.C. and L.A.C. 

were adjudicated dependent, although they remained in Maternal 

Grandparents’ care. 

On October 21, 2015, when neither Mother nor G.M.S.’s biological 

father, A.G.S., was making progress with respect to the child safety goals set 

by CYF, a dependency petition was filed on behalf of G.M.S. G.M.S. was 

adjudicated dependent on December 1, 2015 and removed from her father’s 

care. Legal and physical custody of G.M.S. was transferred to CYF and she 

was placed with her siblings in the care of Maternal Grandparents. Following 

____________________________________________

2 Genetic testing established that G.M.S.’s biological father is A.G.S. and 

L.A.C.’s biological father is M.J.R. B.D.C.’s putative father, J.E.H., did not 

make himself available for genetic testing. 
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the adjudications of dependency, the permanency plan and placement goal 

for Children was to return to Mother’s care, with a concurrent goal of adoption.

On September 26, 2016, CYF filed separate petitions to terminate 

Mother’s parental rights to Children involuntarily.3 The orphans’ court 

conducted a termination hearing as to all three petitions on January 27, 2017. 

Following the hearing, on January 30, 2017, the court entered separate orders 

terminating Mother’s parental rights to Children. Mother timely filed a notice 

of appeal on February 16, 2017, along with a concise statement of errors 

complained of on appeal. 

On appeal, Mother asks us to consider whether the orphan’s court 

abused its discretion in “concluding that termination of [Mother’s] parental 

rights would serve the needs and welfare of [] Children pursuant to 23 Pa.C.S. 

§ 2511(b).” Mother’s Brief at 9. Additionally, Mother contends that remand 

is necessary in order to appoint counsel for Children. Id. at 19-20.

We review Mother’s issues mindful of our well-settled standard of 

review. 

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 

____________________________________________

3 CYF also sought to terminate involuntarily the rights of each child’s father. 

Following a hearing, the orphan’s court determined that termination was in 

Children’s best interest, and the rights of each man were terminated with 

respect to that man’s putative child. The record does not indicate whether 

any of the men appealed the orphans’ court’s decisions.
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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.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks 

omitted). 

We first address Mother’s argument that the orphans’ court erred by 

failing to appoint counsel to represent Children’s legal interests pursuant to 

23 Pa.C.S. § 2313(a) and our Supreme Court’s recent holding in In Re 

Adoption of L.B.M., 2017 WL 2257203 (Pa. 2017). Mother acknowledges 

that Children, collectively, had the benefit of a guardian ad litem (GAL) during 

the termination proceedings, but contends that “the appointment of and 

representation by a [GAL] who is also an attorney does not satisfy the 

mandate” of the statute. Mother’s Brief at 11. 

Initially, we observe that Mother did not raise this claim before the 

orphans’ court, and failed to include it in her concise statement of errors 

complained of on appeal or as a separate issue in the statement of questions 

included in her brief to this Court.4 Under normal circumstances, this would 

result in waiver. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are 

waived and cannot be raised for the first time on appeal.”); Krebs v. United 

Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (citations omitted) 

____________________________________________

4 This omission is especially glaring considering Mother’s counsel, the 

Allegheny County Bar Foundation Juvenile Court Project, filed an amicus brief 

in L.B.M. in support of appellant-mother and her right-to-counsel argument. 
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(“[A]ny issue not raised in a statement of matters complained of on appeal is 

deemed waived.”).

However, Mother contends that this claim cannot be waived as the error 

is structural in nature. Mother’s Brief at 19. We agree that Mother cannot 

waive Children’s right to counsel. See In re Adoption of G.K.T., 75 A.3d 

521 (Pa. Super. 2013) (holding that “[t]he right to counsel belongs to the 

child, and there is no appointed counsel for the child who could have raised 

the child’s rights in the proceedings before the [orphans’] court.”)(quoting In 

re E.F.H., 751 A.2d 1186, 1189 (Pa. Super. 2000)). Therefore, we proceed to 

address the merits of this issue. Section 2313(a) 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).

In L.B.M., our Supreme Court held that Section 2313(a) requires courts 

to appoint counsel to represent the legal interests of any child involved in a 

contested involuntarily termination proceeding. 2017 WL 2257203 at 6. The 

Court explained that a child’s legal interests are distinct from his or her best 

interests, in that a child’s legal interests are synonymous with the child’s

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

court. 2017 WL 2257203 at 1.
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Importantly, the justices disagreed on whether an attorney who serves 

as a child’s dependency GAL can also serve as that child’s counsel during 

contested involuntary termination proceedings. In the Court’s lead opinion, 

Justice Wecht, joined by Justices Donohue and Dougherty, opined that a 

child’s legal interests cannot be represented by his or her dependency GAL. 

2017 WL 2257203 at 7. However, the Court’s remaining four justices 

disagreed with that portion of the lead opinion, and opined in a series of 

concurring and dissenting opinions that a child’s dependency GAL may serve 

as his or her counsel, so long as the GAL’s dual role does not create a conflict 

of interest. 2017 WL 2257203 at 9. Thus, in this case, we conclude that the 

orphans’ court was not required to appoint a separate attorney to represent 

Children’s legal interests, so long as Children’s GAL was an attorney, and so 

long as Children’s legal and best interests did not appear to be in conflict.

Upon review, it is clear that Children’s legal interests and best interests 

were aligned throughout the termination proceedings. Dr. Patricia Pepe 

testified at the termination hearing that she asked G.M.S. with whom she 

would like to live and G.M.S. indicated that her preference was to be adopted 

by Maternal Grandparents and “visit with” Mother.5 N.T., 1/27/2017, at 59, 

____________________________________________

5 B.D.C. and L.A.C., were four-and-a-half and two-and-a-half, respectively, at 

the time of the termination hearing and were not interviewed individually by 

Dr. Pepe, although she did observe the younger children interact with Mother. 

Dr. Pepe testified that Children appeared to have a primary attachment to 

maternal grandparents and, of the younger children, B.D.C. only 

acknowledged Mother as a caregiver to “a small extent.” N.T., 1/27/2017, at 
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71. Child’s GAL, Stephanie Pawlowski, Esquire, argued on behalf of Children’s 

position during the hearing, id. at 94, and filed a brief before this Court 

supporting the termination of Mother’s parental rights. Thus, Attorney 

Pawlowski represented Children’s legal and best interests. No remand is 

necessary.6

We turn now to Mother’s contention that the orphans’ court abused its 

discretion by terminating her parental rights. Termination of parental rights 

is governed by Section 2511 of the Adoption Act, 23 Pa.C.S. §§ 2101-2938, 

which requires a bifurcated analysis. 

Initially, the 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 the statutory grounds for 

termination delineated in Section 2511(a). Only if the court 

determines that the parent’s conduct warrants termination of his 

or her parental rights does the court engage in the second part of 

the analysis pursuant to Section 2511(b): determination of the 

needs and welfare of the child under the standard of best interests 

____________________________________________

69, 72. L.A.C. did not appear to recognize Mother as a parental figure. Id. at 

69.

6 The author of this Opinion dissented in L.B.M. to opine that the language of 

Section 2313(a) “suggest[ed] that the legislature intended to differentiate

between legal counsel and GAL in TPR proceedings,” and favored remand for 

a new hearing with the appointment of legal counsel because “the difference 

between the child’s interests and the best interest of the child is staggering, 

and it is readily apparent that a GAL appointed to represent the [children’s] 

interests in the dependency proceedings cannot advocate effectively on the 

[children’s] behalf with respect to issues raised surrounding the TPR and 

adoption without creating a conflict.” In re: Adoption of L.B.M., 2016 WL 

3080124 at *34 (Pa. Super. May 31, 2016) (unpublished) (Strassburger, J., 

dissenting). The author agrees with the position taken by Justice Wecht in 

the Supreme Court’s Opinion, but is bound to follow the reasoning of the four 

justices as discussed above.
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of the child. One major aspect of the needs and welfare analysis 

concerns the nature and status of the emotional bond between 

parent and child, with close attention paid to the effect on the child 

of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

In this case, the orphans’ court terminated Mother’s parental rights to 

G.M.S. pursuant to Sections 2511(a)(2), (5), and (b), and to B.D.C. and L.A.C. 

pursuant to Sections 2511(a)(2), (5), (8), and (b). In her brief, Mother 

concedes that CYF “did clearly and convincingly establish threshold grounds 

for termination [as to Children] pursuant to Section 2511(a)(2).” Mother’s 

Brief at 15. Therefore, we analyze the orphans’ court’s decision pursuant to 

Section 2511(b) only. That subsection provides as follows.

(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. §§ 2511(a)(2), (5), (8), and (b).

Section 2511(b) focuses on whether termination of parental 

rights would best serve the developmental, physical, and 

emotional needs and welfare of the child. As this Court has 

explained, Section 2511(b) does not explicitly require a bonding 

analysis and the term ‘bond’ is not defined in the Adoption Act. 

Case law, however, provides that analysis of the emotional bond, 

if any, between parent and child is a factor to be considered as 

part of our analysis. While a parent’s emotional bond with his or 

her child is a major aspect of the subsection 2511(b) best-interest 
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analysis, it is nonetheless only one of many factors to be 

considered by the court when determining what is in the best 

interest of the child.

[I]n addition to a bond examination, the trial court can 

equally emphasize the safety needs of the child, and 

should also consider the intangibles, such as the love, 

comfort, security, and stability the child might have 

with the foster parent. Additionally, this Court stated 

that the trial court should consider the importance of 

continuity of relationships and whether any existing 

parent-child bond can be severed without detrimental 

effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting 

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and 

citations omitted). 

Here, Mother argues that terminating her parental rights would be 

contrary to Children’s needs and welfare. Mother contends that the court 

erred in adopting Dr. Pepe’s analysis, improperly balanced the benefits of 

Children remaining with Maternal Grandparents against the “perceived faults” 

of Mother, and failed to address what effect termination would have on 

Children. Mother’s Brief at 18-19. 

As this Court has explained, “a trial court has discretion to accept or 

reject a witness’ testimony, including that of an expert witness, and is free to 

believe all, part, or none of the evidence presented.” In re Bosley, 26 A.3d 

1104, 1111 (Pa. Super. 2011) (citing Childress v. Bogosian, 12 A.3d 448, 

456 (Pa. Super. 2011)). In this case, Dr. Pepe described Children’s 

interactional visit with Mother as “utter chaos” and expressed her concern that 
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Mother would be unable to parent all three children at once. N.T., 1/27/2017, 

at 61-62. Dr. Pepe explained that the youngest children do not recognize 

Mother as a parental figure and, while there is evidence of a bond between 

G.M.S. and Mother, such bond is not beneficial to G.M.S. and is eclipsed by 

that G.M.S. has to her Maternal Grandparents. Id. at 59, 67, 69. Dr. Pepe 

opined that, even in light of G.M.S.’s connection with her mother and the fact 

that continued communication between Mother and Children after termination 

of Mother’s rights was not a guarantee, adoption was in Children’s best 

interests. Id. at 67-68, 71-72.

In its opinions, the orphans’ court found credible Dr. Pepe’s testimony 

that G.M.S. “has an attachment to Mother” but that such attachment “is not 

necessarily positive or beneficial” to the child. Orphans’ Court Opinion re: 

G.M.S., 3/17/2017, at 24 (quotations omitted). In contrast, the court 

acknowledged that the bond G.M.S. has with Maternal Grandparents is 

“strong,” that G.M.S. looks to her grandparents to satisfy her daily needs, and 

that she has expressed a desire to be adopted and “visit with” Mother. In light 

of those facts, the court concluded that the permanency and stability provided 

by adoption by Maternal Grandparents would significantly outweigh any 

potential harm to G.M.S. Id. at 24-25. With respect to B.D.C., the court found 

that there was no substantial bond between Mother and child and concluded 

that termination would be in his best interest. Orphans’ Court Opinion re: 

B.D.C., 3/17/2017, at 24. In so holding, the court found significant the age 
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of the child and his degree of attachment to Maternal Grandparents. Id. at 

25. Similarly, the court held that termination of Mother’s parental rights to 

L.A.C., who was just a year old when adjudicated dependent and placed in the 

care of Maternal Grandparents, would serve the child’s best interests because 

there is “no substantial bond” between Mother and child. Orphans’ Court 

Opinion re: L.A.C., 3/17/2017, at 24. In sum, the court concluded that 

Children’s bond with Mother is not necessary and beneficial, and that only 

Maternal Grandparents have met Children’s developmental, physical, and 

emotional needs and welfare. Id. 

Thus, the record supports the decision of the orphans’ court to accept 

Dr. Pepe’s recommendation and terminate Mother’s parental rights. The 

evidence presented during the termination hearing establishes that Children’s 

interactions with Mother are chaotic and without structure, and that Children 

are thriving in their grandparents’ care. Even assuming that G.M.S. and 

Mother do share a bond, preserving Mother’s parental rights could merely 

prolong the emotional harm suffered by G.M.S. and her siblings. By 

terminating Mother’s parental rights now, the orphans’ court has ensured that 

Children will receive the greatest degree of permanence and stability possible, 

while protecting Children from this potential distress and uncertainty. As this 

Court has stated, “a child’s life cannot be held in abeyance while a parent 

attempts to attain the maturity necessary to assume parenting 

responsibilities. The court cannot and will not subordinate indefinitely a child’s 
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need for permanence and stability to a parent’s claims of progress and hope 

for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 

2006). 

Finally, we reject Mother’s assertion that the orphans’ court placed an 

undue emphasis on her failings as a parent. Mother is correct that Section 

2511(b) focuses on the welfare of Child, and not Mother’s parental incapacity. 

However, it is beyond cavil that Mother’s incapacity, and the likelihood that 

she will never remedy that incapacity, which she has conceded, is an 

important consideration when determining what is best for Children. See 

C.D.R., 111 A.3d at 1220 (citing In re Adoption of M.E.P., 825 A.2d 1266, 

1276 (Pa. Super. 2003)) (“Clearly, it would not be in Child’s best interest for 

his life to remain on hold indefinitely in hopes that Mother will one day be able 

to act as his parent.”). 

Based on the foregoing, we conclude that the orphans’ court did not 

abuse its discretion by terminating Mother’s parental rights to Children. We 

therefore affirm the court’s January 30, 2017 orders.

Orders affirmed.

Judge Stabile joins the opinion.

PJE Ford Elliott files a concurring statement in which Judge Stabile joins.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/2018