J-E02001-22

2023 PA Super 10

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 18 ADOPT 2020

BEFORE: PANELLA, P.J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS, 

J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN, J.

OPINION BY MURRAY, J.: FILED JANUARY 19, 2023

M.J.G. (Former Stepfather) appeals from the decree dismissing his 

petition to adopt A.M.W. (Child) and granting the adoption petition filed by 

E.B. (Current Stepfather), joined by A.G. (Mother).1 After careful review, and

consideration of our Supreme Court’s recent decision in In the Interest of 

K.N.L., --- A.3d ---, 2022 WL 10719028 (Pa. Oct. 19, 2022), we vacate and 

remand for the trial court to reconsider Former Stepfather’s standing, appoint 

counsel for Child, and for further proceedings consistent with this decision.

____________________________________________

1 Generally, when a party seeks to appeal from two separate decisions entered 

on the same docket, the party must file two separate notices of appeal. Dong 

Yuan Chen v. Saidi, 100 A.3d 587, 589 n.1 (Pa. Super. 2014). Here, Former 

Stepfather filed one notice of appeal indicating he was appealing from two 

decrees entered the same day. Appellees Current Stepfather and Mother did

not object, and the appeal period has expired. Therefore, we decline to quash 

the appeal. See Gen. Elec. Credit Corp. v. Aetna Cas. & Sur. Co., 263 

A.2d 448, 453 (Pa. 1970).
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Child was born in December 2009. Child’s biological father is not and 

has not been part of Child’s life. Mother and Former Stepfather were in a 

relationship during Mother’s pregnancy with Child and later married. They 

divorced in January 2017. Mother and Current Stepfather married in May 

2019. In February 2021, the parties filed competing petitions to adopt Child. 

Former Stepfather summarized his relationship with Child as follows:

I was in a monogamous relationship with [Mother] at the time of 

[Child]’s birth until our marriage. I was stepfather until [Mother] 

and I divorced on January 6, 2017. During that time, I helped 

teach [Child] to walk and to talk and I was her only father figure 

until [Current Stepfather] came into the picture. Her biological 

father was not involved whatsoever. [Child] has always called me 

“dad”, “daddy”, or words to that effect. I financially supported 

[Child] both before and after my divorce from [Mother] and I have 

provided health and dental insurance for most of her life, including 

at present. [Mother] publicly [sic] held me out as [Child]’s father. 

Prior to and even after our divorce, we discussed adoption and 

[Mother] gave me her consent to adopt[.]

Former Stepfather’s Brief in Support of Adoption Petition, 3/11/21, Exhibit G.

In 2016, Former Stepfather and Mother executed a Post-Nuptial 

Agreement which included provisions regarding custody and child support of

Child (as well as their biological child born during their marriage). Id. at 

Exhibit C, ¶¶ 4-5. The Post-Nuptial Agreement states: “The parties shall share 

legal custody of [the children]. ... The parties agree [Former Stepfather] shall 

have shared physical custody of the children when [Former Stepfather] 
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returns from Italy.”2 Id. at Exhibit C, ¶ 4. Former Stepfather exercised 

custody of pursuant to the terms of the Post-Nuptial Agreement and 

maintained regular contact with Child through video calls. Id. at Exhibit G. 

In June 2020, he filed a petition seeking partial physical custody of Child.3 Id.

On June 2, 2020, Mother and Current Stepfather filed a petition to 

terminate the parental rights of Child’s biological father. The trial court

appointed counsel to represent Child in the termination proceedings. On 

December 14, 2020, the court granted the petition and terminated the 

parental rights of biological father. 

In February 2021, Former Stepfather and Current Stepfather (joined by 

Mother), filed competing petitions to adopt Child. By opinion and decree

entered March 31, 2021, the trial court dismissed Former Stepfather’s 

petition. The trial court reasoned:

In this case, [Mother]’s rights are intact. She is remarried and 

her husband, [Current Stepfather,] wishes to adopt[,] and 

[Mother] has consented to such. Given these facts, the court 

cannot ... find that consent of the surviving natural mother is not

required and bestow an ex-husband/stepfather the right to 

proceed in an adoption, even though he may have “in loco 

parentis” status.

4

____________________________________________

2 Former Stepfather is in the United States Air Force and was on active duty 

in Italy at the time.

3 The status of the petition is unclear from the record.

4 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 

(Footnote Continued Next Page)
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Trial Court Opinion, 3/31/21, at 3-4 (emphasis and footnote added). That 

same day, the trial court held an adoption hearing and granted Current 

Stepfather’s petition to adopt. This timely appeal followed.5

In a memorandum filed February 14, 2022, a divided panel of this Court 

affirmed. On February 22, 2022, Former Stepfather filed an application for 

reargument en banc. On March 30, 2022, this Court granted Former 

Stepfather’s application for reargument and withdrew the original 

memorandum. Pursuant to Pa.R.A.P. 2140, Former Stepfather filed a 

supplemental brief expanding on the issue of Child’s right to counsel and 

raising two new issues. Mother and Current Stepfather filed a reply brief. The 

case was argued before this Court en banc on September 14, 2022. 

Former Stepfather raises seven issues in his original brief, and two 

additional issues in his supplemental brief. Our review of the following three 

issues is dispositive:

[1.] Whether the trial court erred and abused its discretion in 

dismissing Appellant’s petition for adoption on the basis that 

Appellant lacked standing[?]

[2.] Whether the trial court erred in failing to rule on Appellant’s 

[p]etition to [i]ntervene?

[3.] Whether the trial court abused its discretion in failing to 

appoint legal counsel and/or [a] guardian ad litem [GAL] for the 

____________________________________________

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

(Pa. Super. 2017) (citations omitted).

5 Former Stepfather and the trial court have complied with Pa.R.A.P. 1925.
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[now twelve-year]-old [C]hild upon receiving two competing 

adoption petitions?

Former Stepfather’s Original Brief at 4 (reordered).

We review Former Stepfather’s issues in the context of the Pennsylvania 

Adoption Act, 23 Pa.C.S.A. § 2101, et seq. The Pennsylvania Supreme Court 

has pronounced: 

[A]doption is purely a statutory right, unknown at common law. 

In re Adoption of E.M.A., 487 Pa. 152, 409 A.2d 10, 11 (1979). 

To effect an adoption, the legislative provisions of the Adoption 

Act must be strictly complied with. [Id.] Thus, our analysis is 

focused entirely on the relevant statutory provisions.

The Adoption Act provides that “[a]ny individual may be adopted, 

regardless of his age or residence.” 23 Pa.C.S. § 2311. 

Similarly, “[a]ny individual may become an adopting parent.” 

[Id.] § 2312. Section 2701 sets forth the requisite contents of 

a petition for adoption filed by a prospective adoptive parent[.]

In re Adoption of R.B.F., 803 A.2d 1195, 1199 (Pa. 2002).

A petition for adoption shall set forth:

...

(7) That all consents required by [S]ection 2711 (relating to 

consents necessary to adoption) are attached as exhibits or the 

basis upon which such consents are not required.

23 Pa.C.S.A. § 2701(7).

With respect to consent,

(a) General rule.-- Except as otherwise provided in this part, 

consent to an adoption shall be required of the following:

(1) The adoptee, if over 12 years of age.

(2) The spouse of the adopting parent, unless they join in 

the adoption petition.
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(3) The parents or surviving parent of an adoptee who has 

not reached the age of 18 years.

(b) Husband of natural mother.-- The consent of the husband 

of the mother shall not be necessary if, after notice to the 

husband, it is proved to the satisfaction of the court by evidence, 

including testimony of the natural mother, that the husband of the 

natural mother is not the natural father of the child. Absent such 

proof, the consent of a former husband of the natural mother shall 

be required if he was the husband of the natural mother at any 

time within one year prior to the birth of the adoptee.

23 Pa.C.S.A. § 2711(a)(1-3) and (b).

The Adoption Act further addresses appointment of counsel:

(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) (emphasis added). 

We recognize “the interpretation and application of a statute is a 

question of law that compels plenary review to determine whether the court 

committed an error of law.” Wilson v. Transport Ins. Co., 889 A.2d 563, 

570 (Pa. Super. 2005). “As with all questions of law, the appellate standard 

of review is de novo and the appellate scope of review is plenary.” In re 

Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en banc).

We review an adoption determination for an abuse of discretion. In re 

K.D., 144 A.3d 145, 151 (Pa. Super. 2016). This Court will not find an abuse 
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of discretion “merely because a reviewing court would have reached a different 

conclusion.” Id. (citation omitted). Rather, “[a]ppellate courts will find a trial 

court abuses its discretion if, in reaching a conclusion, it overrides or 

misapplies the law, or the record shows that the trial court’s judgment was 

either manifestly unreasonable or the product of partiality, prejudice, bias or 

ill will.” Id. (citation omitted).

Moreover, 

[i]n both custody and adoption matters, our paramount concern 

is the best interests of the child. This “best interests”

determination is made on a case-by-case basis, and requires the 

weighing of all factors[,] which bear upon a child’s physical, 

intellectual, moral, and spiritual well-being. 

In re Adoption of A.S.H., 674 A.2d 698, 700 (Pa. Super. 1996) (citations 

omitted). See also 23 Pa.C.S.A. § 2902(a).

In his first issue, Former Stepfather maintains the trial court erred and 

abused its discretion in dismissing “[Former Stepfather’s] petition for adoption 

on the basis that [he] lacked standing.” Former Stepfather’s Original Brief at 

12. He also raises related arguments that the trial court erred in failing to 

rule on his petition to intervene in Current Stepfather’s adoption case and in 

granting Current Stepfather’s petition to adopt. Id. at 31. Former Stepfather 

contends he has standing to intervene and adopt because he “stands in loco 

parentis to [Child].” Id. at 13; see also id. at 32. Former Stepfather argues 

our decision in In the Interest of N.S., 845 A.2d 884 (Pa. Super. 2004) 

supports his position. Id. He states:
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[Former Stepfather] was [C]hild’s stepfather, raised [C]hild, and 

financially supported [C]hild. Following the divorce of [Former 

Stepfather] and [M]other in January 2017, and with [M]other’s 

agreement, [Former Stepfather] continued to share legal and 

physical custody rights of [C]hild[.] ... It is undisputed that 

[Former Stepfather] stood in loco parentis to [Child] since birth 

and continued to stand in loco parentis at the time of the trial 

court’s decision[.] 

Id. at 14. 

Former Stepfather also contends the trial court abused its discretion “in 

finding [he] could not proceed to a hearing on the merits without the express 

consent of mother, the existing legal parent.” Id. at 15. See also id. at 15-

24. Lastly, he maintains that because he stands in loco parentis, Current 

Stepfather “lacked standing to proceed with his petition absent [Former 

Stepfather’s] consent.” Id. at 24.

The trial court explained its disagreement as follows:

If the facts argued by [Former Stepfather] were found to be true 

and for the purposes of this matter, they are considered so, he 

has established that he stands in loco parentis to [Child]. A person 

who acts in loco parentis:

... puts himself into the situation of assuming the 

obligations incident to the parental relationship 

without going through the formality of a legal 

adoption. The status of in loco parentis embodies two 

ideas: first, the assumption of a parental status, and 

second, the discharge of parental duties.

In re: Wims[, 685 A.2d 1034, 1036 (Pa. Super. 1996] (citations 

omitted). This will certainly be beneficial to [Former Stepfather] 

in his custody matter.

In this case, the [Mother’s] rights are intact. She is remarried and 

her husband, [Current Stepfather,] wishes to adopt and [Mother] 

has consented to such. Given these facts, this Court cannot 
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expand In re Adoption J.E.F.[, 902 A.2d 402 (Pa. 2006)] and 

find that consent of the surviving natural mother is not required 

and bestow an ex-husband/step-father the right to proceed in an 

adoption, even though he may have “in loco parentis” status.

Trial Court Opinion, 3/29/21, at 3-4. We are constrained to disagree.

On October 19, 2022, the Pennsylvania Supreme Court decided In re 

KNL, --- A.3d ---, 2022 WL 10719028 (Pa. Oct. 19, 2022).

6

 The Supreme 

Court “granted discretionary review to examine whether the lower courts 

applied appropriate standards for evaluating, and rejecting, a former 

caregiver’s asserted in loco parentis status for purposes of standing to 

intervene in a proceeding to adopt a child in the custody of a foster care 

agency, pursuant to the Adoption Act.” Id. at *1. Ultimately, the Supreme 

Court determined the trial court had misapplied the law, and the “proper 

standing inquiry reviews whether a non-foster-parent third party seeking to 

pursue a petition to adopt a child in the custody of an agency has a genuine 

and substantial interest in formalizing a permanent parental relationship with 

the adoptee-child, which surpasses the interest of ordinary, unrelated 

strangers.” Id. at *18.

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6 Although KNL was decided after Appellant filed this appeal, it is well settled 

that “Pennsylvania appellate courts apply the law in effect at the time of the

appellate decision. This means that we adhere to the principle that a party 

whose case is pending on direct appeal is entitled to the benefit of changes in 

law which occur before the judgment becomes final.” Commonwealth v.

Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (citations omitted).
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This case is distinguishable insofar as there is no agency involved. The 

trial court found that because Mother’s parental rights are intact and she 

consented to Current Stepfather’s adoption of Child, her consent was required 

to confer Former Stepfather with the right to intervene. The trial court did 

not address “whether a non-foster-parent third party seeking to pursue a 

petition to adopt a child ... has a genuine and substantial interest in 

formalizing a permanent parental relationship with the adoptee-child ....” Id.

The Pennsylvania Supreme Court observed:

Standing relates to the capacity of an individual to pursue a 

particular legal action, and requires the petitioning litigant be 

adversely affected, or aggrieved, in some way. Traditionally, this 

requirement is met where an individual demonstrates he or she 

has a substantial interest in the subject matter of the litigation 

that must be direct and immediate, rather than remote, and which 

distinguishes his interest from the common interest of other 

citizens. In Pennsylvania, the doctrine of standing is a judiciallycreated tool intended to winnow out litigants with no direct 

interest in the matter, and to otherwise protect against improper 

parties. Consequently, where the General Assembly expressly 

prescribes the parties who may pursue a particular course of 

action in Pennsylvania courts, legislative enactments may further 

enlarge or distill these judicially-applied principles. Standing is a 

threshold issue and must be resolved before proceeding to the 

merits of the underlying action. As is the case in custody matters, 

standing within an adoption proceeding is a conceptually distinct 

legal question from the central, substantive issue of the child's 

best interests.

K.N.L., 2022 WL 10719028, at *8 (citations omitted).

In addition:

Issues of standing generally raise pure questions of law for which 

we employ de novo review of a trial court’s decision. As well, a 

challenge to asserted in loco parentis status in a particular context 

typically involves a fact-intensive inquiry and may implicate mixed 
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questions of law and fact. Where factual findings and credibility 

determinations are at issue, we will accept them insofar as they 

are supported by the record. In matters arising under the 

Adoption Act, as well as appeals of child custody and dependency 

decisions, our plenary scope of review is of the broadest type; that 

is, an appellate court is not bound by the trial court’s inferences 

drawn from its findings of fact and is compelled to perform a 

comprehensive review of the record for assurance the findings and 

credibility determinations are competently supported.

Id. at *5.

In K.N.L., the child was in the custody of the Philadelphia Department 

of Human Services (DHS), and the parental rights of the child’s biological 

parents were terminated, as were the custodial and visitation rights of the 

child’s former caregiver. Id. at *1. When the child’s foster parents sought to 

adopt the child, the biological aunt intervened, and the foster parents 

withdrew their adoption petition. Id. Thereafter, the former caregiver’s son

(who became the appellant), sought to intervene.

7

 Id. at *2. The appellant 

filed a petition to adopt the child, claiming in loco parentis status. Id. 

Following a hearing, the juvenile court concluded the appellant lacked standing 

because he was not currently assuming parental obligations of the child, and 

did not have the written consent of DHS, who was the child’s current legal 

guardian. Id. at *4. This Court affirmed the juvenile court. Id. at *5. In 

granting allowance of appeal, the Pennsylvania Supreme Court focused on the 

juvenile court’s denial of the appellant’s petition “to intervene in the adoption 

____________________________________________

7 He was also the biological mother’s former “romantic partner and longtime 

friend.” Id. at *2.
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of the child despite uncontroverted proof that [he] stood in loco parentis for 

the subject child by assuming the role of parent and discharging parental 

duties[.]” Id. (citation omitted).

Ultimately, the Pennsylvania Supreme Court rejected the juvenile 

court’s conclusion that the appellant’s current in loco parentis status and DHS 

consent was necessary to establish appellant’s standing. Id. at *9, *11. The 

High Court observed that the legal basis for the “general rule restricting 

standing” to individuals currently in loco parentis was “not apparent,” and 

“decline[d] to recognize [prior Superior Court cases] as the source of any 

requirement that in loco parentis status must be current to establish 

standing.” Id. at *9. With respect to the Adoption Act’s consent 

requirements, the Court concluded that in its prior decisions, it

squarely rejected any purported relationship between the 

threshold issue of a party’s standing, and the substantive impact 

of the [Adoption] Act’s consent requirements. Also [the Supreme 

Court] rejected ... that an agency’s refusal of the consent to adopt 

... could still bar standing for everyone else. Instead, with respect 

to the Section 2711 consent requirements, [our Supreme] Court 

[had previously] unanimously declared this provision, by its plain 

language, never purports to speak to standing, much less does 

the provision suggest that the consequence of withholding consent 

is to eliminate standing. Instead, the [Adoption] Act contemplates 

the adoption court, not the agency, will perform an analysis of a 

conferred or withheld consent of a relevant party as part of an 

overall substantive evaluation of the child’s best interests in the 

merits of proceeding on an adoption petition, and this

substantive inquiry necessarily follows, but has no relation to, 

the preliminary inquiry into standing. We reiterate: the agency’s 

withheld consent is not a bar to standing and has no part in that 

analysis; rather, it is an issue to be considered subsequently and 

substantively within the paramount context of the child’s best 
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interests, her individual needs and welfare, in relation to the 

petition.

....

Accordingly, nothing in the [Adoption] Act precludes any party 

from filing a petition for adoption, nor is there anything to preclude 

the trial court from entertaining multiple adoption petitions and 

then determining the best interests of the child.

Id. at *11-12 (citations and footnote omitted, emphasis in original).

After determining that the juvenile court erred in its analysis of 

appellant’s standing, the Court concluded:

A proper standing inquiry reviews whether a non-foster-parent 

third party seeking to pursue a petition to adopt a child in the 

custody of an agency has a genuine and substantial interest 

in formalizing a permanent parental relationship with the 

adoptee-child, which surpasses the interest of ordinary, 

unrelated strangers.

Id. at *18 (emphasis added).

We recognize the lack of agency involvement in this case. Nonetheless,

we conclude that K.N.L. is applicable. In determining that Former Stepfather 

lacked standing, the trial court focused on the absence of Mother’s consent. 

Trial Court Opinion, 3/31/21, at 3-4 (stating the trial court could not “find that 

consent of the surviving natural mother is not required and bestow an exhusband/step-father the right to proceed in an adoption, even though he may 

have ‘in loco parentis’ status.”). This was error. Accordingly, we vacate the 

trial court’s decree holding that Former Stepfather lacked standing to 

intervene and granting Current Stepfather’s petition to adopt.
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Former Stepfather additionally claims the trial court erred by failing to

appoint legal counsel and/or a guardian ad litem (GAL) for Child. See Former 

Stepfather’s Original Brief at 35-39; Former Stepfather’s Supplemental Brief 

at 2-11. 

Prior to reaching the merits of this claim, we address whether it is 

properly before us. In In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020), 

our Supreme Court held the issue of appointment of counsel for a child in 

contested termination cases was not waivable and could be raised sua sponte 

by an appellate court. While K.M.G. addressed appointment of counsel in 

termination proceedings, see id. at 1223, we find its analysis instructive to 

the circumstances presented in this case. The Supreme Court emphasized:

[C]hildren do not have ... the ability or opportunity to assert the 

denial of their right to counsel. Given the critical importance and 

permanency of termination proceedings, as well as children’s 

inability to navigate the termination process themselves, we hold 

that appellate courts should engage in sua sponte review to 

determine if orphans’ courts have appointed counsel to represent 

the legal interests of children in contested termination 

proceedings, in compliance with Subsection 2313(a).

Id. at 1235. See also In re T.S., 192 A.3d 1080, 1087 (Pa. 2018) (issue of 

whether orphans’ court erred in not appointing counsel for children is nonwaivable where “[t]here was no attorney representing solely the children’s 

legal interests who could have raised their rights in the trial court, and the 

children plainly could not have done so themselves.”); In the Interest of 

D.N.G., 236 A.3d 361, 365-66 (Pa. Super. 2020) (declining to find waiver 
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where biological mother raised challenge to effectiveness of child’s counsel for 

first time on appeal). Consistent with the foregoing, we decline to find waiver. 

Instantly, the trial court appointed counsel to represent Child in the 

termination proceedings involving Child’s biological father, who had no 

relationship with Child. See Order, 10/2/20. The trial court did not appoint 

counsel for Child in the adoption proceedings, despite finding that during 

Former Stepfather and Mother’s “relationship and marriage, [Former 

Stepfather] was [Child’s] only father figure.” Trial Court Opinion, 3/31/21, at 

1.

In addition, Child is over the age of 12 and must consent to adoption. 

23 Pa.C.S.A. § 2711(a)(1). The record reflects Child has a lifelong relationship 

with Former Stepfather. The record is less clear about Child’s relationship 

with Current Stepfather. See Former Stepfather’s Brief in Support of Adoption 

Petition, 3/11/21, at Exhibits B, E-G; Trial Court Opinion, 3/31/21, at 1-2. 

Former Stepfather shares legal and physical custody of Child and pays child 

support. Former Stepfather’s Brief in Support of Adoption Petition, 3/11/21, 

at Exhibit C. 

The trial court does not reference Child’s views about adoption, or 

examine whether adoption is in Child’s best interests. See A.S.H., 674 A.2d 

at 700; 23 Pa.C.S.A. § 2902(a). It is unclear whether or to what extent Child 

has been advised of the implications of adoption, or how adoption by Current 

Stepfather could impact Former Stepfather’s custody. See K.N.L., 2022 WL 
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10719028, at *13 (observing that the rights of a person in loco parentis to 

custody or visitation “automatically” terminate upon adoption). Mother and 

Former Stepfather have a biological child, but the trial court does not discuss 

the implications of adoption with respect to the siblings. Also, there are 

financial benefits available to children with a parent in the military. See

Former Stepfather’s Supplemental Brief at 5. While it is unclear whether 

Former Stepfather’s custody and child support factor in Child’s eligibility for

benefits, adoption by Current Stepfather would foreclose the possibility.

 In K.M.G., our Supreme Court observed “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.” K.M.G., 240 A.3d 

at 1234; see also 23 Pa.C.S.A. § 2313(a). The Supreme Court recently 

addressed the role of counsel for a child in termination and adoption 

proceedings relative to a child’s preferences and best interests:

Generally, an attorney acting as a child’s legal counsel must, at a 

minimum, attempt to ascertain the child’s preference and 

advocate on the child’s behalf. Admittedly, that inquiry may be 

no simple task. First, discerning a child’s preference will 

necessarily be a fact-intensive and nuanced process, based upon 

an attorney’s observations and interactions with the child. 

Moreover, minors, as a class of individuals, fall within a wide range 

of ages, maturity levels, and emotional capacity that all factor into 

a child’s ability to express a preference. As a result, ascertaining 

a child’s preferred outcome may involve various circumstanceappropriate strategies. At one end of the spectrum, an attorney 

may represent an older, mature child who understands precisely 

what a termination proceeding entails and may articulate in clear, 

even binary, terms his preference for the outcome of the 

proceedings. By contrast, an attorney may represent a very 

young, less mature, child, who is unable to express any 
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understanding of the proceedings or articulate a preference as to 

their outcome.

Yet, in the middle of this range may be a child who understands 

to some degree what is at stake in the proceedings, and who is 

capable of expressing some preference, but who is unable to do 

so in a fully informed and articulate fashion. In these instances, 

an attorney must make reasonable, but at the same time prudent, 

efforts to discern the child’s desires. And[] not only age and 

maturity may inform the analysis. There may be circumstances 

surrounding a termination proceeding that hamper determining a 

child’s clear preference. 

In re P.G.F., 247 A.3d 955, 966 (Pa. 2021) (footnote omitted). 

This Court has emphasized not only the importance of the appointment 

of counsel, but that counsel be effective in advocacy, particularly when the 

child is near the age where their consent is required for adoption. See D.N.G., 

230 A.3d at 366-68. In D.N.G., DHS sought to terminate biological mother’s 

parental rights. Id. at 363. The then-11-year-old child informed counsel he 

did not wish to be adopted; counsel relayed his position to the family court 

but took no further action to advocate for child. Id. at 366. On appeal, this 

Court vacated the termination of mother’s parental rights and remanded

based on counsel being ineffective. Id. at 367-68. We opined:

While legal representation in this context necessarily involves 

talking to the child client and reporting the child’s preferences to 

the court, it is in no way limited to those two actions. To the 

contrary, ... [counsel] was required to advocate on behalf of 

D.N.G. and provide zealous client-directed representation of 

D.N.G.’s legal interests.

...
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We agree with [m]other’s assertion that [counsel’s] advocacy was 

inadequate. It was [counsel’s] principal obligation as legal counsel 

to ascertain D.N.G.’s legal interest and promote it. 

...

Furthermore, counsel declined to present any legal argument in 

his client’s favor.

...

Most importantly, [counsel] failed to cast the most meaningful 

legal argument in his arsenal, i.e., the probability that his soonto-be-twelve-year-old client would refuse to consent to any 

contemplated adoption. Indeed, by terminating parental rights 

notwithstanding D.N.G.’s express desire not to be adopted, the 

family court risked transforming D.N.G. into an orphan without 

any true purpose. 

In sum, based upon our review of the record, we conclude that 

[counsel’s] representation did not satisfy the mandate of § 

2313(a), because he neglected to advocate for his client’s legal 

interest. ... [I]t is not possible for legal counsel to zealously 

represent his client’s legal interest merely by engaging in one 

discussion with the child on the eve of trial and then summarizing 

that conversation for the family court. Rather than simply 

reporting a preference to the family court, it was [counsel’s] 

obligation to engage in client-directed advocacy on behalf of 

D.N.G. with regard to the child’s preferred outcome. Therefore, 

we hold that D.N.G. was deprived of his statutory right to counsel 

to advance his legal interest, a deprivation that continues in this 

appeal.

Id. at 366-67 (citations and footnote omitted).

A scenario similar to the instant matter arose 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. In R.A.B., 

the mother, in agreement with her partner (R.B.), conceived a child by 

artificial insemination. Id. at 1-2. The relationship between mother and R.B.
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ended when the child was three; the mother subsequently married, and her 

husband sought to adopt the child. Id. at 2. R.B. successfully intervened in 

the proceedings, and after an 8-day trial, the orphans’ court granted the 

husband’s adoption petition. Id. R.B. appealed, and this Court vacated and 

remanded based on our concern that application of the Adoption Act had 

“eliminated” R.B.’s custodial rights. Id. at 7-9. We explained:

[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 [the child] either created a 

situation where [the child] has three legal parents, or effectively 

eliminated [R.B.]’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 [the child], since, as recognized by counsel 

appointed to represent the interest of [the child], the 

experts produced by the respective parties were adamant that 

[R.B.]’s relationship with [the child] should be maintained. 

Id. at 9 (emphasis added).

Like the parties in R.A.B., Former Stepfather and Mother have a custody 

agreement. However, unlike the child in R.A.B., Child in this case is over the 

age of 12 and does not have counsel. Mindful of the “effective[] eliminat[ion 

of Former Stepfather’s] parental rights without due consideration for the 

consequences,” In re Adoption of R.A.B. at 9, we conclude that legal 

representation is warranted for the advocacy of Child’s preferences and best 

interests. In re P.G.F., supra. 

For the above reasons, we are constrained to vacate the trial court’s 

decree dismissing Former Stepfather’s petition to intervene and adoption 
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petition and granting Current Stepfather’s adoption petition. In addition to 

remanding for a determination of Former Stepfather’s standing, we remand 

for appointment of counsel for Child, 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. We further recognize the Pennsylvania Supreme Court’s 

holding that while one attorney may act as GAL and legal counsel, the attorney

may only do so when “the child’s legal interests [i.e., the child’s preferred 

outcome] do not conflict with the attorney’s view of the child’s best interests.” 

Id. at 1224. Thus, the trial court may appoint a GAL and legal counsel if it 

determines that Child’s preferences are contrary to counsel’s view of Child’s 

best interests.

Decree vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.

President Judge Panella, Judges McLaughlin and McCaffery join the 

opinion.

Judges Nichols and Sullivan concur in the result.

Judge Dubow files a concurring opinion in which President Judge Panella, 

Judges Nichols and Sullivan join.
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Judge Kunselman files a dissenting opinion in which Judge Olson joins.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2023