J-A29023-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: B.W.

APPEAL OF: C.N., MOTHER

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 434 WDA 2021

Appeal from the Order Entered March 17, 2021

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

No(s): No. 6- ADOPT- 2019

BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 8, 2022

C.N. (“Mother”) appeals from the order entered on March 17, 2021, 

which denied her petition to terminate the parental rights of A.W. (“Father”) 

as to their daughter, B.W., born in February 2015, in order to allow Mother’s 

husband, N.N. (“Stepfather”) to adopt B.W. We reverse and remand for 

proceedings consistent with this memorandum.

This appeal involves Mother’s second petition to terminate Father’s 

parental rights as to B.W. A prior panel of this Court detailed much of the

family history on Mother’s appeal from the denial of her first petition. We 

restate the relevant portions as follows:

Mother and Father are the parents of [B.W]. Mother and Father 

never married. Mother resides in Mills Run, Pennsylvania, with 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A29023-21

- 2 -

her three daughters, E.L.N. (born in July 2013), [B.W.] and C.R.N. 

(born in April 2018).[1] After [B.W.]’s birth in February 2015, 

[B.W.] resided with Mother, Father, and E.L.N., until April 2015, 

when Father disappeared for four months, until late August or the 

beginning of September 2015. Mother explained that, when 

Father left for work one day in August 2015, he left behind all of 

his belongings, and did not make any phone calls to her for four 

months. Between late August 2015 and January 2017, Father had 

only sporadic contact with [B.W]. Mother stated that Father would 

speak with [B.W.] either over the telephone or, infrequently, in 

person, but only when “he just felt like it.” In December 2016, 

when Mother’s house burned down, Mother was staying at her 

mother’s home, and Father came to live there with 

Mother. Mother testified that she and Father would live together 

off and on for “just reasons.” Mother testified that Father did not 

visit [B.W.] when he was not living with Mother.

On April 6, 2017, Mother and Father permanently ended their 

relationship. According to Mother, between April 2017 and June 

2017, Mother and Father did not reside together, and Father saw 

[B.W.] only three times. . . . Father’s last visit or in-person 

contact with [B.W.] was on June 11, 2017, when [B.W.] was two 

years old. Mother stated that, after June 11, 2017, Father would 

“go weeks” without contacting her. Since June 11, 2017, Father 

did not give [B.W.] any Christmas cards or gifts, nor did he call 

her. Father had not attended or taken [B.W.] to any of her 

physician’s or dentist’s appointments since that date, nor had he 

provided any meals for [B.W.], comforted [B.W.] when she was 

hurt, or tucked her into bed at night.

. . . Father filed a custody Complaint regarding [B.W.] in 

November 2018. . . .

Mother married Stepfather in October 2018. Mother had an active 

child support [o]rder against Father between 2015 and [April 9, 

2020]. In June 2018, Mother and Stepfather received an 

____________________________________________

1 As of the instant termination petition, Mother also resides with her son, 

D.D.N. (born in February 2020). Additionally, we observe that in the notes of 

testimony from the instant termination proceedings, the initials for Mother’s 

eldest child are A.L.N., not E.L.N. However, as this child is not part of this 

appeal, we do not alter our prior abbreviation to match the current record.
J-A29023-21

- 3 -

insurance card for [B.W.], and they were aware that Father also 

provided health insurance for [B.W].

Mother filed the [first] termination [p]etition on February 13, 

2019. Therein, Mother alleged that [B.W.] had lived with her since 

birth; Father ha[d] not seen [B.W.] since June 11, 2017; Father 

had evidenced a settled purpose to relinquish his claim to [B.W.]; 

and Father ha[d] refused or failed to perform parental duties. On 

April 9, 2020, the [orphans’] court conducted a termination 

hearing.

In re Adoption of B.M.W., 240 A.3d 125 (Pa.Super. 2020) (non-precedential 

decision at 1-4) (footnotes and citations omitted). 

On December 23, 2019, the orphans’ court denied Mother’s petition, 

concluding that because Father had initiated custody litigation, Mother had 

failed to establish that Father took no action during the six months preceding 

the filing of the petition. Additionally, the court found that Mother had created 

obstacles to prevent Father from having contact with B.W. and concluded that 

Mother failed to establish that termination would be in B.W.’s best interest. 

Mother appealed to this Court. Upon review, we concluded that the 

court’s credibility and weight determinations were supported by the record 

and the court did not err or abuse its discretion in finding that Mother failed 

to sustain her burden of proof. Thus, on August 7, 2020, we affirmed the 

order of the orphans’ court. Id.

During the pendency of that appeal, the parties began reunification 

proceedings for Father and B.W.

2

 Father attended three sessions with B.W.

____________________________________________

2 We noted in the prior appeal that the court in the custody case had appointed 

Kathryn Vozar as a reunification counselor. In re Adoption of B.M.W., 240 
J-A29023-21

- 4 -

in February 2020. While the sessions went well, Father appeared to be under 

the influence of drugs at the second session. Consequently, Ms. Vozar, the 

reunification counselor who coordinated the sessions, required Father to 

undergo a drug screen before the third session. Although he had one week 

to comply, Father did not undergo a drug screen until the morning of the third 

session, February 27, 2020. The results were not immediately available and

Father was permitted to attend that third session. Subsequently, the test 

yielded positive results for cocaine and heroin. As a result, Ms. Vozar stopped 

any further reunification sessions until Father provided proof of treatment and 

two months of negative drug screens. Father never provided the 

documentation to Ms. Vozar or contacted her about treatment and the

reunification proceedings ceased. N.T., 1/20/21, at 98-103, 107, 110. 

Instead, in April 2020, Father reached out directly to Mother to video 

chat with B.W. via Facebook Messenger. Father had three video chat sessions 

with B.W. in April 2020. However, during the last session, Father upset B.W.

and she terminated the call, crying hysterically. Id. at 29-31; N.T., 2/18/21, 

at 13, 15. Based on this interaction, Mother asked her counsel to send a letter 

____________________________________________

A.3d 125 (Pa.Super. 2020) (non-precedential decision at 13 n.11). Ms. Vozar 

testified in the underlying proceedings that at the time of the prior termination 

hearings, Father had completed his initial intake but reunification proceedings 

had not yet begun because it was unclear from the court order who was 

responsible for the reunification fees. N.T., 1/20/21, at 89, 96.
J-A29023-21

- 5 -

to Father’s counsel advising him to act appropriately around B.W. and to reinitiate professionally supervised visitation.3

 N.T., 1/20/21, at 38-40. 

Mother and Father attempted to set up subsequent video chats and 

voice calls, and Father sent a video apology to B.W., but B.W. refused to talk 

to Father. Finally, on April 30, 2020, B.W. spoke to Father on a voice call, but 

she ultimately terminated that call early as well. Id. at 37, 40; N.T., 2/18/21, 

at 16-17, 20. Father did not contact Mother or B.W. after April 30, 2020.4 

N.T., 1/20/21, at 40, 82; N.T., 2/18/21, at 32.

Mother filed the instant petition for termination of Father’s parental 

rights on November 19, 2020. Therein, Mother alleged that Father had 

evidenced a settled purpose to relinquish his claim to B.W. as his last contact 

with B.W. was on April 30, 2020. On January 20 and February 18, 2021, the 

____________________________________________

3 The letter was mailed on April 21, 2020, but Father testified that he did not 

receive it until May of 2020.

4 The following exchange occurred on Facebook Messenger after B.W. 

terminated the call:

Father: Why does she think I’m mean

Mother: Because of the phone call from before. This has messed 

with her anxiety really bad

Father: I wasn’t being mean or making fun of her I just wanna 

be able to talk with her I feel so bad

Mother: She doesn’t want to talk. [B.W.] has a lot of problems 

and this situation is taking a toll on her.

Mother’s Exhibit 3 at unnumbered 11.
J-A29023-21

- 6 -

orphans’ court conducted termination hearings. The court incorporated the 

transcript from the prior termination proceeding and renewed Michael Ford, 

Esquire, as legal interest counsel and guardian ad litem (“GAL”) for B.W. from 

the prior termination proceeding.

5

 At the time of the instant termination

hearings, B.W. was just shy of six years old. Mother testified on her own 

behalf and presented the testimony of Ms. Vozar and Father’s girlfriend. 

Father testified on his own behalf and presented the testimony of his sister. 

On March 17, 2021, the orphans’ court denied Mother’s petition. 

This appeal followed. Both Mother and the orphans’ court complied with 

Pa.R.A.P. 1925. Mother presents the following issues:

A. Whether the [orphans’] court erred by failing to properly 

analyze Father’s failure to perform parental duties within the 

six months preceding Mother’s termination of parental rights 

petition and failing to assess Father’s failure to do the same 

when looking at the “whole record” pursuant to 23 Pa.C.S.A. 

§2511(a)(1) and applicable case law.

B. Whether the [orphans’] court abused its discretion by 

exhibiting bias in favor of Father by prejudging the case and 

granting leeway to him while appearing hostile against Mother 

throughout the proceeding and characterizing Mother’s actions 

as “devious” in its opinion, which was unsupported by the 

record.

C. Whether the [orphans’] court erred by failing to consider 

[B.W.]’s best interest under 23 Pa. C.S.A. §2511(b).

D. Whether the [orphans’] court erred by failing to ensure the 

[GAL] met the standard mandated by 23 Pa.C.S.A. §2313(a), 

requiring appointment of a GAL to advocate for [B.W.]’s best 

____________________________________________

5 We note with disapproval that Attorney Ford did not file a brief in this appeal 

advocating B.W.’s legal interests. 
J-A29023-21

- 7 -

interests and express Child’s preferences, when the GAL: failed 

to meet [B.W.], assess bond, or make a recommendation to 

the court.

Mother’s brief at 3-4 (unnecessary capitalization omitted).

In matters involving involuntary termination of parental rights, our 

standard of review is as follows:

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 [the appellate court’s] 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) (cleaned up). “The trial court is 

free to believe all, part, or none of the evidence presented and is likewise free 

to make all credibility determinations and resolve conflicts in the 

evidence.” In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation 

omitted). “[I]f competent evidence supports the trial court’s findings, we will 

affirm even if the record could also support the opposite result.” In re 

Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).

The termination of parental rights is governed by §2511 of the Adoption 

Act and requires a bifurcated analysis of the grounds for termination followed 

by the needs and welfare of the child.
J-A29023-21

- 8 -

Our case law has made clear that under [§]2511, the court must 

engage in a bifurcated process prior to terminating parental rights. 

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 [§]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 [§]2511(b): determination of the needs 

and welfare of the child under the standard of best interests 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). We have 

defined clear and convincing evidence as that which is so “clear, direct, 

weighty and convincing as to enable the trier of fact to come to a clear 

conviction, without hesitance, of the truth of the precise facts in issue.” In re 

C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (citation and quotation 

marks omitted).

Here, Mother petitioned to terminate Father’s parental rights pursuant 

to 23 Pa.C.S. § 2511(a)(1) and (b). These subsections provide as follows:

(a) General rule.--The rights of a parent in regard to a child may 

be terminated after a petition filed on any of the following 

grounds:

(1) The parent by conduct continuing for a period of at least 

six months immediately preceding the filing of the petition 

either has evidenced a settled purpose of relinquishing 

parental claim to a child or has refused or failed to perform 

parental duties.

. . . . 

(b) Other considerations.--The court in terminating the rights 

of a parent shall give primary consideration to the developmental, 
J-A29023-21

- 9 -

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)(1), (b). Termination is proper when the moving party

proves grounds for termination under any subsection of §2511(a), as well as 

§2511(b). T.B.B., supra at 395. If the court finds that the moving party has 

satisfied the statutory grounds for termination, “it must then determine 

whether the termination of parental rights serves the best interests of the 

child.” In re C.T., 944 A.2d 779, 782 (Pa.Super. 2008) (citation omitted).

Our Supreme Court set forth the proper inquiry under §2511(a)(1) as 

follows:

Once the evidence establishes a failure to perform parental duties 

or a settled purpose of relinquishing parental rights, the court 

must engage in three lines of inquiry: (1) the parent’s explanation 

for his or her conduct; (2) the post-abandonment contact between 

parent and child; and (3) consideration of the effect 

of termination of parental rights on the child pursuant to Section 

2511(b).

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998) (citation 

omitted).

As it relates to timing, this Court further explained,

the trial court must consider the whole history of a given case and 

not mechanically apply the six-month statutory provision. The 

court must examine the individual circumstances of each case and 

consider all explanations offered by the parent facing termination 

of his or her parental rights, to determine if the evidence, in light 
J-A29023-21

- 10 -

of the totality of the circumstances, clearly warrants the 

involuntary termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).

This Court has long recognized that a parent is required to make diligent 

efforts towards the reasonably prompt assumption of full parental 

responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa.Super. 2002). In this 

vein, “[a] parent’s vow to cooperate, after a long period of uncooperativeness 

regarding the necessity or availability of services, may properly be rejected as 

untimely or disingenuous.” Id. at 340 (citation omitted). As it relates 

to §2511(a)(1), “[a] parent is required to exert a sincere and genuine effort 

to maintain a parent-child relationship; the parent must use all available 

resources to preserve the parental relationship and must exercise ‘reasonable 

firmness’ in resisting obstacles placed in the path of maintaining the parentchild relationship.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003)

(citation omitted). “This court has repeatedly recognized that parental rights 

are not preserved by waiting for a more suitable or convenient time to perform 

one’s parental responsibilities while others provide the child with his or her 

immediate physical and emotional needs.” Id. (cleaned up).

Instantly, the relevant six-month period was from May 19 to November 

19, 2020. As noted hereinabove, Father had no contact with B.W. during that 

period. In explaining its reasons for denying the termination petition, the 

orphans’ court provided the following summary:

The court finds that the April 21st, 2020 letter impeded free 

communication between the non-custodial parents and [B.W]. 

The court finds that the ambiguously hostile nature of the 
J-A29023-21

- 11 -

language of the letter, combined with Father’s relatively limited 

education, was at best inarticulate and at worst, insidious. 

Indeed, the tactic of threatening the Father for attempting to 

communicate with [B.W.], succeeding, and then arguing that the 

Father has not been proactive enough in his efforts to 

communicate smacks of deviousness. It constitute the very type 

of “deliberately created obstacle” contemplated by the 

Pennsylvania Superior Court in In re B.,NM., 856 A.2d 847, 855-

56 (Pa.Super. 2004).

Meanwhile, the Father continued to litigate the appeal of the 

denial of the February 13th, 2019 termination of parental rights 

petition before the Pennsylvania Superior Court and, on August 

7

th, 2020, prevailed.

The court finds that the father has neither evidenced a 

settled purpose of relinquishing a parental claim to [B.W.] nor has 

he refused or failed to perform parental duties.

Orphans’ Court Opinion, 3/17/21, at 4 (capitalization altered; emphasis in 

original).

Mother contends that she established grounds for involuntary 

termination of Father’s parental rights pursuant to §2511(a)(1) due to Father’s

lack of contact with B.W., which she avers was due to his own inaction, not 

Mother’s letter. Mother’s brief at 30. Mother further avers that Father 

admitted to doing nothing for B.W. during the relevant six-month period and 

“did nothing to overcome [the] perceived ‘closed door’” ostensibly created by 

her letter. Id. at 32-33. Thus, Mother argues that “[f]or the second time, 

the [orphans’ c]ourt failed to consider Father’s lack of effort and instead 

focused exclusively on Mother’s conduct.” Id. at 33. Regarding the court’s

emphasis on Father litigating the prior appeal, Mother avers that Father’s brief 

was filed on May 4, 2020, nothing else was filed by either party after that 
J-A29023-21

- 12 -

date, and “[i]dly awaiting a pending Superior Court decision is not ‘performing 

parental duties’ within the six-month look-back period.” Id. at 55. 

Instantly, the filings related to the prior appeal are not part of the 

certified record and thus we cannot determine whether Father actively 

participated in the appellate process during the relevant six-month period. 

Even assuming Father actively participated in response to Mother’s appeal of 

the order denying her petition to terminate Father’s parental rights, what we 

find much more telling is Father’s actions in maintaining contact with B.W. 

after facing various obstacles, i.e., his negative drug test, B.W. not wanting 

to talk to him on informal calls after he upset her, and the letter from Mother’s 

counsel advising Father’s counsel to re-initiate professionally supervised 

visitation. 

Upon review of the parties’ briefs and certified record, we conclude that 

the court abused its discretion in finding that Mother failed to establish her 

evidentiary burden under §2511(a)(1). Stated simply, the record does not 

support the trial court’s elevation of Mother’s letter over Father’s inaction. In 

fact, the letter, while critical of Father’s interactions with B.W., can neither be 

described by this Court as “insidious,” “threatening,” or “hostile.” The letter 

did not order Father to stop contacting B.W., but rather, given his conduct

during the offending video chat, asked counsel to “advise your client that he 

must set up professionally supervised visitation and refrain from harassing my 

client and antagonizing this child. I do not know how much control you have 

over your client, but it is necessary to have third-party guidance in order to 
J-A29023-21

- 13 -

prevent further harm.” Mother’s Exhibit 4 (Letter from Allison Reynolds, 

Esquire, 4/21/20) at unnumbered 2. Father took no actions to attempt to 

overcome this purported obstacle, nor did he take any actions to re-initiate

professionally supervised visitation.

Indeed, Father’s initial inaction regarding the professionally supervised 

reunification proceedings prompted the informal video chats. As noted 

hereinabove, the reunification proceedings, with which Mother complied, were 

suspended due to Father’s positive drug test for cocaine and heroin and his 

failure to follow through with recommended drug treatment and evidence of 

sobriety. According to Ms. Vozar, she did not believe it was safe for Father to 

be around B.W. while under the influence of cocaine and heroin and she was 

not willing to resume reunification proceedings until Father could demonstrate 

sobriety. Father never contacted Ms. Vozar about treatment, his sobriety, or 

about resuming sessions. Instead, he sought informal video chat sessions 

with B.W. in April 2020. Although Mother permitted these, they ultimately led 

to the conversation that upset B.W. so much that Mother asked Father to reinitiate professional visitation sessions. Notably, at the time of the termination 

hearings, Father testified that he still was not sober. 

Critically, the certified record does not indicate that reunification is 

possible at this point or that Father exerted a “sincere and genuine effort to 

maintain a parent-child relationship[.]” In re C.M.S., supra at 462.

Reunification proceedings were halted because of Father’s drug use and, 

despite being offered treatment, Father continued to be an active drug user 
J-A29023-21

- 14 -

as of the time of the termination hearings. He failed to have any contact with 

B.W. during the relevant six-month period and neglected to make any effort 

to overcome the perceived obstacle of Mother’s letter, which contrary to the 

orphans’ court’s interpretation, did not bar contact with B.W., but requested 

that Father comply with the terms of professionally supervised visitation. 

Father had an avenue to maintain contact with his daughter, but he declined 

to overcome the obstacle of his drug addiction in order to restart the 

supervised vistation, thereby rendering reunification impossible. Based on the 

foregoing, Mother established her burden under §2511(a)(1), and the 

orphans’ court abused its discretion in finding otherwise.

Instantly, because the orphans’ court denied Mother’s petition based on 

an erroneous conclusion that she failed to establish grounds under 

§2511(a)(1), the court did not conduct the requisite §2511(b) analysis. 

Relatedly, Mother argues that Attorney Ford did not advocate for B.W.’s best 

interests or express her preference. Mother’s brief at 73. Thus, Mother 

contends that “[B.W.] had no voice in this action” and requests “remand for 

consideration of bond” and, if necessary, “to appoint counsel for [B.W].” Id. 

at 77. The orphans’ court found that the record was “full and complete with 

respect to this issue” and that this Court’s decision in the prior appeal 

contained “a true and correct reiteration thereof.” Orphans’ Court Statement 

in Lieu of Opinion, 4/9/21, at 5. Mother counters that because this Court 

found Mother had not met her burden under §2511(a) on the prior appeal, we 

did not consider Mother’s arguments about Attorney Ford’s representation of 
J-A29023-21

- 15 -

B.W. Mother’s brief at 75. Moreover, Mother argues that Attorney Ford did 

not meet with B.W. prior to the instant termination hearings, despite B.W.

having aged two years since the prior hearings, and did not ask Father a single 

question. Id. at 76-77.

Our Supreme Court has held “that Subsection 2313(a)[6] simply does 

not require counsel to place the child’s legal interests on the record. Indeed, 

the statutory directive is to the court, not counsel.” In re Adoption of 

K.M.G., 240 A.3d 1218, 1227 (Pa. 2020). The Court continued, stating:

We additionally reject the underlying assumption that the absence 

of a child’s preference on the record equates to counsel’s failure 

to ascertain the child’s preferred outcome or to provide effective 

representation of his or her client for purposes of Section 

2313(a). Children for whatever reason may understandably resist 

stating whether their parents’ rights should be terminated and 

may be averse to declaring their preference between their natural 

and foster parents. While we recognize that it may be a best 

practice for a child’s legal counsel to divulge the child’s 

preferences in order to advocate for their client’s preferred 

outcome, we find nothing in the language of the Adoption Act 

requiring that their preference be placed on the record, which 

instead only requires that the child be appointed 

counsel. Moreover, we observe that the child’s legal counsel has 

____________________________________________

6 This subsection 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).
J-A29023-21

- 16 -

a duty of confidentiality to their client, the child, such that they 

should not be compelled to disclose the child’s preferences. We 

are thus wary to create a bright-line rule requiring counsel and 

the courts to place the children’s preferred outcome on the record 

as we are concerned by both the potential violation of a child’s 

attorney-client privilege and with the real specter of placing 

unconscionable stress on a child by mandating that her feelings 

regarding her parents and caretakers be made public and 

permanently enshrined in the record.

Id. at 1237-38.

On appeal from the denial of Mother’s first termination petition, this 

Court recounted that Attorney Ford had stated at that underlying termination 

hearing that he had met with B.W., who was then four years old. B.M.W., 

supra (non-precedential decision at 5-6). Attorney Ford offered no such 

indication at the instant termination proceedings, despite B.W. having aged 

approximately two years in the interim and the circumstances having 

changed. Attorney Ford also did not state her preference at the instant 

termination hearings. Rather, he merely left it up to the discretion of the 

orphans’ court. See N.T., 2/18/21, at 92-92. While counsel is not required 

to place a child’s preference on the record, we are troubled by the combination 

of Mother’s assertion that Attorney Ford failed to meet with B.W. prior to the 

termination hearings and Attorney Ford’s lack of advocacy on B.W.’s behalf at 

the termination and appellate level. 

Before we address the adequacy of that representation, however, we 

observe that “where the orphans’ court has appointed a single attorney to 

serve as [GAL] and legal counsel to represent both the child’s best interests 

and legal interests, [our Supreme Court] concluded an appellate court should 
J-A29023-21

- 17 -

review sua sponte whether the court made a determination that those

interests did not conflict.” In re P.G.F, 247 A.3d 955, 964–65 (Pa. 2021). 

The Court “cautioned that ‘appellate review of this question does not involve 

second-guessing whether GAL/Counsel in fact had a conflict but solely whether 

the orphans’ court made the determination in the first instance.’” Id. at 965 

(quoting K.M.G., supra at 1235-36) (cleaned up)).

Presently, there is no indication in the certified record that the orphans’ 

court made the requisite determination that then-almost-six-year-old B.W.’s

legal and best interests did not conflict. Although this Court noted during the 

prior appeal that there appeared to be no conflict, nearly two years passed 

between the first termination proceedings and the instant proceedings. 

Moreover, it is entirely possible that B.W.’s legal and best interests may have 

come into conflict at the time of the instant proceedings regardless of any 

apparent non-conflict at the prior proceedings. Since we cannot determine 

from the certified record whether the orphans’ court fulfilled its §2313(a) duty 

to “determine whether counsel can represent the dual interests before 

appointing an individual to serve as GAL/Counsel for a child[,]” we cannot 

fulfill our duty to sua sponte “verify that the orphans’ court indicated that the 

attorney could represent the child’s best interests and legal interests without 

conflict.” K.M.G., supra at 1236. 

Based on the foregoing, we reverse the order denying Mother’s petition 

to terminate Father’s parental rights and remand the case for the parties to 

present evidence at a §2511(b) hearing regarding B.W.’s preferred outcome 
J-A29023-21

- 18 -

in this termination matter and the effect that termination would have on 

B.W.’s developmental, physical, and emotional needs and welfare. We also 

direct the orphans’ court to fulfill its §2313(a) duty as articulated in P.G.F., 

supra, and determine whether Attorney Ford may represent the dual interests 

of B.W. If the court determines that no conflict exists, Attorney Ford may 

represent B.W. at the §2511(b) hearing. If the court determines there is a 

conflict between B.W.’s legal and best interests, the court shall appoint 

separate legal counsel prior to the §2511(b) hearing. Likewise, we direct 

Attorney Ford or newly-appointed counsel to meet with B.W. prior to the 

hearing to determine her preference and to advocate on her behalf.7 

Order reversed. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished.

____________________________________________

7 We observe that Mother requests this Court remand the matter before 

another jurist based on the orphans’ court’s bias in favor of Father and hostility 

towards Mother. Mother’s brief at 57. “Generally, a party must seek to have 

a judge recused from a case, by first bringing the petition for recusal before 

that jurist, thus enabling the judge to evaluate the reasons for recusal 

firsthand.” In re Adoption of L.J.B., 18 A.3d 1098, 1112 (Pa. 2011) (citation 

omitted). Our Supreme Court has held that sua sponte removal of a lower 

court judge “exceed[s] the authority of the Superior Court. The parties are 

required to file a motion to recuse and for the judge in question to rule; his or 

her decision must stand absent an abuse of discretion.” Commonwealth v. 

Whitmore, 912 A.2d 827, 834 (Pa. 2006). Instantly, Mother raised her 

recusal request for the first time on appeal. Accordingly, there was no motion 

for the orphans’ court to rule on, and no discretion for us to review. As we 

cannot sua sponte address this claim, and it cannot be raised for the first time 

on appeal, we do not reach this issue. Should Mother wish to pursue this 

issue, she may file a petition for recusal with the orphans’ court upon remand.
J-A29023-21

- 19 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/8/2022