In re K.M.G.

Full title: IN RE: ADOPTION OF K.M.G. Appeal of: T.L.G., Mother In re: Adoption of…

Court: Supreme Court of Pennsylvania.

Date published: Nov 10, 2020

240 A.3d 1218 (Pa. 2020)

Opinion

No. 55 WAP 2019 No. 56 WAP 2019 No. 57 WAP 2019 No. 58 WAP 2019

11-10-2020

IN RE: ADOPTION OF K.M.G. Appeal of: T.L.G., Mother In re: Adoption of: A.M.G. Appeal of: T.L.G., Mother In re: Adoption of S.A.G. Appeal of: T.L.G., Mother IN RE: ADOPTION OF J.C.C. APPEAL OF: T.L.G., MOTHER

JUSTICE BAER

OPINION

For the third time in four years, we address the appointment of counsel to represent children in contested termination of parental rights proceedings pursuant to Section 2313(a) of the Adoption Act, 23 Pa.C.S. § 2313(a).¹ As we have previously recognized, " Section 2313(a) requires that the common pleas court appoint an attorney to represent the child's legal interest, i.e. the child's preferred outcome," and the failure to appoint counsel constitutes structural error in the termination proceedings. In re T.S. , 648 Pa. 236, 192 A.3d 1080, 1082 (2018). We reiterate that an attorney appointed as counsel to represent a child's legal interests may also serve as the child's guardian ad litem ("GAL"), responsible for asserting the child's best interests, so long as the child's legal interests do not conflict with the attorney's view of the child's best interests. Id.

1 The full text of Section 2313(a) is set forth infra at 23 n.21.

In this case, we consider issues relating to appellate review of a trial court's appointment of legal counsel under Section 2313(a). For the reasons set forth below, we conclude that, while an appellate court should verify that the orphans’ court appointed counsel to represent the child's legal interests, it may not assess sua sponte the performance of that representation. After review, we affirm the decision of the Superior Court, which affirmed the termination of parental rights in this case.

I. Facts and Trial Court Determination

The issue before this Court involves a question of law related to whether, and how, an appellate court should review sua sponte appointed counsel's representation of children's legal interests in a termination of parental rights proceeding. Specifically, we address, inter alia , whether reviewing courts must determine sua sponte whether a conflict existed in an attorney's representation of a child's best interests and legal interests and whether counsel's advocacy for the child's legal interests included placing the child's preferred outcome on the record. As applied to the case at bar, the parties dispute whether a remand is necessary to determine if the appointed counsel suffered from a conflict in representing the children's legal interests and best interests and for the placement of the children's preferred outcomes on the record. Notably, the merits of the termination of parental rights in this case are not before this Court. Nevertheless, we briefly address the facts leading to the termination proceeding to provide context to the questions surrounding the children's representation in this case.

Appellant T.L.G. ("Mother") is the mother of four children: A.M.G., S.A.G., K.M.G., and J.C.C. (collectively "the Children").² At the time of the termination of parental rights hearing, the children were eight, six, five, and two years old, respectively. The Juvenile Court in McKean County became involved with the family in August 2015, when the McKean County Children and Youth Services ("CYS") filed dependency petitions for all four children, as a result of their parents’ inability to provide proper care, especially in regard to their medical care and school attendance.³ Specifically, CYS observed that Mother was unable to control chronic lice infestations affecting the children, as manifested in the eldest child having thirty-eight reports of lice during the 2014-2015 school year.⁴ The failure to address the issue at home required this child to receive treatments at school, which apparently resulted in other children bullying her. This child also suffered from an untreated gastrointestinal issue resulting in pain and the inability to control her bowels. Despite referrals, Mother did not follow through on recommended medical appointments to address the eldest sibling's significant gastrointestinal issue and also missed newborn appointments for the youngest sibling. Mother additionally faced truancy charges as the eldest child missed forty-seven days of school during the 2014-2015 school year. Given this background, Juvenile Court Judge Pavlock adjudicated the four Children dependent in November 2015.

2 Unless otherwise specified, we draw the factual recitation from the memoranda and orders of the McKean County Orphans’ Court authored by President Judge John H. Pavlock in support of termination of Mother's parental rights to the four children in this case. We observe that Judge Pavlock oversaw the dependency proceedings in Juvenile Court and the subsequent contested termination of parental rights proceedings in Orphans’ Court. The court entered substantially identical memoranda and orders for each child, differing only in regard to specific biographical information. Memorandum and Order, In re A.M.G. , No. 42-17-0240, 3/2/2018; Memorandum and Order, In re S.A.G. , No. 42-17-0241, 3/2/2018; Memorandum and Order, In re K.M.G. , No. 42-17-0239, 3/2/2018; and Memorandum and Order, In re J.C.C. , No. 42-17-0242, 3/2/2018. The citations in this opinion derive from the docket entries relating to K.M.G. unless otherwise indicated.

3 At various points during the relevant time period, the Children's father was also involved with and responsible for their care. His involvement, however, is not relevant to the issues before this Court as he consented to the relinquishment of his parental rights in August 2017, which the trial court granted in April 2018. Accordingly, we will not discuss his involvement in the case and, instead, will reference the factual history solely in reference to Mother.

4 While the record is unclear, it appears that the eldest was the only school-aged child during the 2014-2015 school year.

As is relevant to the issues before this Court, Attorney Mark Hollenbeck began serving as the Children's GAL as early as January 2016.⁵ See Master's Recommendation - Permanency Review (Non-Placement) dated Jan. 21, 2016. The Master's Recommendation, as adopted by Judge Pavlock, explained that "the views of the child[ren] regarding the permanency plan have been ascertained to the fullest extent possible and communicated to the court by the [GAL]." Id. This notation was repeated in subsequent review orders over the next two years.

5 Two other individuals served as GAL prior to Attorney Hollenbeck's appointment.

While Mother was initially compliant with the family's permanency plan in the spring of 2016, her progress slowed in May 2016, when the family's house was condemned. Additionally at this time, Mother had a new paramour, Richard Youngs, III, who was a registered sex offender.⁶ During the summer of 2016, due to Mother's unstable housing and her continuing relationship with Mr. Youngs, the court twice placed the Children in short-term foster care.⁷ They were returned to Mother's custody in the fall of 2016, after she made some progress. However, during the winter of 2016-2017, the children again experienced lice infestations, and Mother failed to attend to the Children's significant dental issues.⁸ Memorandum and Order, dated Mar. 2, 2018, at 3, 6. The court noted that "[t]his lack of dental care and hygiene resulted in the children having extensive dental problems, pain[,] and tooth removal." Id. at 3.

6 According to the trial court, Mr. Youngs was required to register as a Tier 2 sex offender in Pennsylvania based upon a conviction for sexual battery in North Carolina. Memorandum and Order, dated Mar. 2, 2018, at 2.

7 In July 2016, the Juvenile Court appointed a Court-Appointed Special Advocate ("CASA") who provided regular, detailed reports regarding the family during the time period relevant to this case.

8 Attorney Hollenbeck avers that the dental issues began in August 2015.

The Juvenile Court removed the Children from Mother's custody again in February 2017, following an emergency room visit for S.A.G., then five years old, who had alleged that one of Mr. Youngs’ children had sexually assaulted her. Despite the alleged assault, Mother allowed Mr. Youngs to continue to live with her and the Children. The Juvenile Court granted CYS's request to place the Children with their father's aunt and uncle ("Paternal Aunt and Uncle"), who "took immediate efforts to adjust the children's diet and the children's behaviors and overall health immediately improved." Id. at 4. The court additionally stated that Paternal Aunt and Uncle "worked closely with CYS, service providers[,] and medical and dental providers to assure the children's safety and wellbeing." Id.

Following the removal, Mother made minimal progress on her reunification goals. Additionally, Mother continued to reside with Mr. Youngs and his children, even though his presence jeopardized her subsidized housing. Notably, Mother "repeatedly tried to hide and deceive other[s] regarding Mr. Youngs’ residency in her home." Id. Moreover, she did "not have frequent contact with the children," often cancelling appointments which caused the children distress. Id. at 4, 7.

In December 2017, CYS filed petitions to terminate Mother's parental rights to the four Children. On January 8, 2018, Judge Pavlock, now sitting as an orphans’ court judge, appointed Attorney Hollenbeck to "represent both the best interests and the legal interests" of the four Children after specifically finding that Attorney Hollenbeck could "adequately represent both the [Children's] best interests and legal interests without conflict." Order of January 8, 2018.

While the order did not provide additional details regarding the court's finding of no conflict, we observe that Judge Pavlock had been involved with the Children's case for over two years, during which time Attorney Hollenbeck had served as the Children's GAL. Indeed, as noted above, the permanency review orders repeatedly indicated that Attorney Hollenbeck had ascertained and communicated the children's preferences to the Juvenile Court, upon which information Judge Pavlock presumably relied when determining that Attorney Hollenbeck could be appointed as legal counsel without conflict. See , e.g., Master's Recommendation - Permanency Review (Non-Placement) adopted by Judge Pavlock on June 21, 2017 ("The views of the child[ren] regarding the permanency plan have been ascertained to the fullest extent possible and communicated to the court by the [GAL].") The court additionally indicated that any party could object to the appointment of Attorney Hollenbeck within ten days of the order; however, no party objected.⁹

9 An attorney appointed to serve as both GAL, representing a child's best interests, and as counsel, representing a child's legal interests, as occurred with Attorney Hollenbeck in this case, will be herein referred to as a "GAL/Counsel."

The court held a termination of parental rights hearing in February 2018. The court succinctly summarized the testimony provided by the CYS caseworkers, which the court accepted as accurate:

They all indicated that Mother at times will attend appointments and does have contact with [the Children]. However, the contact and its consistency is intermittent. Mother could have more contact but does not. They all testified that [the Children] have a bond with Mother. Each expressed concern regarding Mother's ability and difficulty understanding and following through with their recommendations and requests. They all testified that Mother puts her relationship with Mr. Youngs and her care of his children ahead of the requirements of the reunification plan and her responsibilities for her children.

Tr. Ct. Op. at 5. The caseworkers also testified to the Children's dramatic improvement in terms of their health and behavior in the home of Paternal Aunt and Uncle, who were, and presumably remain, willing to adopt the Children. As is relevant to the issues raised in this case, the GAL/Counsel did not place each child's preferred outcome on the record at this hearing but did assert that he viewed termination to be in the Children's best interests.

Based upon the evidence supporting Mother's inability to care for the Children's medical and dental issues and to progress toward her goals, the court concluded that CYS demonstrated by clear and convincing evidence that Mother's parental rights should be terminated under several subsections of Section 2511(a), which provides grounds for termination of parental rights. Specifically, the court found that Mother "refused or failed to perform parental duties" for at least six months immediately prior to the filing of the termination petition. Id. at 12 (referencing 23 Pa.C.S. § 2511(a)(1) ). Second, the court opined that "Mother's repeated incapacity and/or refusal has caused [the Children] to be without proper parental care and control and the cause is unlikely to be remedied." Id. (indicating the necessary requirements for 23 Pa.C.S. § 2511(a)(2) ). Additionally, the court recognized that the Children had been removed from Mother's care for at least six months and that "even with assistance, Mother will be unable to remedy the conditions that necessitated placement." Id. (referencing 23 Pa.C.S. § 2511(a)(5) ). Finally, the court indicated that "twelve months or more have elapsed from the date of [the Children's] placement and the initial conditions that led to placement continue to exist." Id. (demonstrating sufficiency for termination under 23 Pa.C.S. § 2511(a)(8) ).

The court additionally found "that the termination of parental rights would best serve [the Children's] developmental, physical and emotional needs and welfare." Id. (referencing 23 Pa.C.S. § 2511(b) ). In so doing, the court emphasized that the Children were doing well in the care of Parental Aunt and Uncle, who indicated their desire to adopt them and to "allow and encourage the [C]hildren to have a relationship with their natural parents." Id. at 13.

II. Superior Court Decision

Mother appealed to the Superior Court raising two issues in her Statement of Matters Complained of on Appeal. She challenged whether the trial court erred in concluding that CYS had proven the grounds for termination of her parental rights under 23 Pa.C.S. § 2511(a) by clear and convincing evidence. She also contested the Orphans’ Court's assessment of the effect of termination on the Children for purposes of 23 Pa.C.S. § 2511(b). The trial court subsequently entered brief Pa.R.A.P. 1925(a) opinions referencing its memoranda and orders discussed supra.

The Superior Court consolidated the appeals relating to the four Children and heard the case en banc , directing the parties to address a new issue: "whether, in reviewing involuntary termination of parental rights decisions, this Court has the obligation to review sua sponte whether the [GAL] had a conflict."¹⁰ In re Adoption of K.M.G., 219 A.3d 662, 666 (Pa. Super. 2019).

10 The Superior Court specifically sought briefing on the following four issues:

1. Is it mandatory that the Superior Court, in an appeal from an involuntary termination decision, review sua sponte whether the child's legal counsel and/or guardian ad litem ["GAL"] properly represented the child's legal interest, particularly in regard to whether there was a conflict between GAL's representation and the child's stated preference?

2. When a party properly raises the issue of whether a GAL has a conflict before the orphans’ court, what is the standard of review that Superior Court must use to review the decision of the trial court?

3. When a party raises the issue that the GAL has an undisclosed conflict for the first time on appeal before Superior Court, must Superior Court remand the case to the orphans’ court to determine whether a conflict exists or may Superior Court make its own determination from the certified record?

4. What factors must the orphans’ court consider and findings the orphans’ court must make in determining whether the child's preference differs from the child's best interests and thus, the GAL has a conflict?

In re Adoption of K.M.G. , 219 A.3d 662, 666–67 (Pa. Super. 2019).

The Superior Court first observed that juvenile courts in dependency matters may appoint a GAL "to represent the legal interests and the best interests of the child." Id. at 667 (citing 42 Pa.C.S. § 6311(a) ; Pa.R.J.C.P. 1151(A) ). If the case transitions into termination proceedings, the court noted that the orphans’ courts will often appoint the GAL serving in the dependency proceedings to continue to serve as GAL representing the child's best interests and also as counsel to represent the legal interests of the children, pursuant to Section 2313(a), which mandates the appointment of counsel to represent the children's legal interests in contested termination proceedings. 23 Pa.C.S. § 2313(a).

The court then turned to consider whether and to what extent appellate courts could evaluate sua sponte GAL/Counsel's simultaneous representation of children's legal interests and best interests. The court acknowledged that appellate courts are limited to addressing issues raised by the parties, absent certain exceptions such as subject matter jurisdiction or where this Court has specifically authorized review. It recognized this Court's teaching that a restrictive invocation of sua sponte review "respect[s] orderly judicial decision-making, afford[s] counsel the opportunity to brief and argue issues, permit[s] the court to benefit from counsel's advocacy, and uphold[s] issue preservation rules." Id. at 669 (citing Wiegand v. Wiegand , 461 Pa. 482, 337 A.2d 256, 257 (1975) ). It noted that this Court had yet to provide it authority to address a GAL/Counsel's representation sua sponte. Id.

The court recognized, however, that previous Superior Court panels had addressed, sua sponte, issues relating to an individual's statutory right to counsel. It recited that a separate panel of the Superior Court had recently addressed sua sponte the failure to appoint legal counsel for children in a termination hearing, citing In re K.J.H. , 180 A.3d 411 (Pa. Super. 2018). We briefly address the details and reasoning of the Superior Court in K.J.H.

In K.J.H. , the Superior Court recognized that the orphans’ court in that case failed to appoint legal counsel for a child in a termination proceeding. The court concluded that it could address the issue sua sponte based upon our holding in In re L.B.M. , 639 Pa. 428, 161 A.3d 172 (2017), that the absence of counsel constitutes structural error which affects the framework of the termination proceedings. The court in K.J.H. analogized to its prior decision in In re X.J. , 105 A.3d 1 (Pa. Super. 2014), where the Superior Court had similarly determined that it could address, sua sponte , the failure of an orphans’ court to appoint counsel for a parent in a termination proceeding pursuant to a different subsection of Section 2313, 23 Pa.C.S. § 2313(a.1). K.J.H. , 180 A.3d at 413 n. 2.

The Superior Court's decision in X.J. , in turn relied upon that court's prior holding in Commonwealth v. Stossel , 17 A.3d 1286, 1290 (Pa. Super. 2011), where the court reviewed on its own motion whether the petitioner had intelligently, knowingly, and voluntarily waived his statutory right to counsel for his first Post-Conviction Relief Act ("PCRA") petition. The court in Stossel reasoned "that where an indigent, first-time PCRA petitioner was denied his right to counsel - or failed to properly waive that right - this [c]ourt is required to raise the error sua sponte and remand for the PCRA court to correct that mistake."¹¹ Id. The court in X.J. applied this same phraseology to a mother's right to counsel in a termination of parental rights proceeding, concluding that it was required to address the issue sua sponte and remand for a new termination hearing, given that the mother had neither been provided notice of her right to counsel nor been appointed counsel during the termination proceedings.

11 We observe that this Court has not spoken to the issue addressed in Stossel .

Returning to the Superior Court's reasoning in K.J.H. , addressing the appointment of legal counsel for children in termination proceedings, the court opined that the need to address, sua sponte, the lack of counsel for children under Section 2313(a) was amplified by the inability of children to assert their right on their own due to their minority status. The Superior Court accordingly deemed sua sponte review required where an orphans’ court fails to appoint any counsel to represent children in a contested termination of parental rights case, in violation of Section 2313(a). K.J.H. , 180 A.3d at 414.

After reviewing, inter alia , its decisions in K.J.H. and Stossel, the Superior Court in the case at bar opined that the "Superior Court only has the authority to raise sua sponte the issue of whether the lower court appointed any counsel for the child, and not the authority to delve into the quality of the representation." Id. at 667-68. To restate its holding, the Superior Court explained that it did "not have the authority [to] review sua sponte whether a conflict existed between counsel's representation and the child's stated preference in an involuntary termination of parental rights proceeding." Id. at 670. In so doing, the Superior Court overruled its prior decision in In re Adoption of T.M.L.M. , 184 A.3d 585 (Pa. Super. 2018), where a panel of the court previously concluded that sua sponte review was required to ascertain whether the GAL had a conflict in representing the children's legal interests in involuntary termination cases.¹²

12 In T.M.L.M. , although the orphans’ court opined that it had appointed counsel in compliance with our decision in L.B.M. , the record did not contain an order reflecting an appointment to represent the child's legal interests, but instead only contained a reference to the appointment of counsel as a GAL. The Superior Court in T.M.L.M. then delved into the transcript of the hearing to consider the counsel's representation, where counsel revealed that she had not met or talked with the child prior to the termination hearing, but instead had spoken with the foster mother. Additionally, the counsel's statements were phrased in terms of the child's best interests, without an expression of the child's preferred outcome. The Superior Court in T.M.L.M. concluded, sua sponte that counsel had not "effectively represented [the c]hild's legal interest" and remanded for the appointment of new legal counsel to ascertain whether the termination was consistent with the child's preferred outcome and for the court to then determine whether a new hearing is necessary. Id. at 590-91.

The Superior Court in the case at bar additionally opined that the structure of the termination proceedings provided other mechanisms to guard against a GAL/Counsel representing a child's legal interests despite a conflict with best interests. It observed that counsel is bound by Rule of Professional Conduct 1.7 to notify the orphans’ court in the event of a conflict to allow for the appointment of separate counsel. The Superior Court also recognized that the other parties in the termination proceeding, such as the parents and the child welfare organization, also provide a check as they have standing to raise the issue of conflicted representation. Moreover, the court noted that the orphans’ court itself has the ability to address the issue of conflict, as occurred in this case where the order appointing Attorney Hollenbeck indicated the absence of a conflict of interest.

The Superior Court also addressed and rejected Mother's challenges to the merits of the termination, based upon its conclusion that the trial court did not err or abuse its discretion in determining that CYS had met its burden by clear and convincing evidence to establish grounds for termination. It specifically opined that the record supported the trial court's conclusion that "Mother demonstrated a continued incapacity to parent the Children and Mother was unwilling or unable to remedy the incapacity in the near future," as required for Section 2511(a)(2).¹³ Id. at 674. It additionally concluded that the trial court did not abuse its discretion in determining that termination was in the best interests of the children as required by Section 2511(b).¹⁴

13 The court observed that if trial court's decision was supported based upon one of the identified grounds for termination, it need not address the other grounds.

14 The Superior Court majority opinion was authored by Judge Dubow and joined by Judges Panella, Lazarus, and Murray. The court also discussed the additional three issues upon which it directed briefing, see supra at 9 n.10, which address aspects of a court's review of the potential conflict of a GAL/Counsel representing a child's legal interests and best interests. As we affirm the court's decision not to adopt sua sponte review of a GAL/Counsel's potential conflict of interest, we find it unnecessary to speak to these issues.
We observe that Judge Olsen, joined by Judge Nichols, filed a concurring and dissenting opinion. She concurred with the majority's decision that the court "lack[ed] authority to consider, sua sponte , whether a conflict exists between a child's legal interest and the child's best interest in the context of a contested termination of parental rights proceeding," but dissented from the majority's determinations on the three additional questions, which she viewed as "advisory in nature." Id. at 676 (Olsen, J., concurring in part and dissenting in part).

President Judge Emeritus Bender filed a dissenting opinion joined by Judges Kunselman and McLaughlin. "[T]o assure that the child's right is protected," the dissenting judges concluded that the Superior Court should review sua sponte whether GAL/Counsel had a conflict in representing both a child's best interests and legal interests, "particularly in light of the fact that a failure to raise a question of separate counsel for the child is non-waivable." Id. at 677-78 (Bender, P.J.E., dissenting). The dissent opined that by not allowing sua sponte review of whether a conflict existed, the court was "potentially allowing the permanent severing of a child's relationship with his or her birth family without protecting his or her legal rights and best interests." Id. at 678. The dissent further explained its view that "if the record does not contain anything to support whether a conflict exists or does not exist, the trial court must receive evidence to support either position and render a decision." Id. The dissent would have remanded for the trial court to determine whether a conflict existed in this case.

III. Parties’ Arguments

Mother asserts that "[s ]ua sponte review of whether a child's legal interest was represented by counsel during a contested termination of parental rights proceeding is essential to uphold the mandate of Section 2313(a) of the Adoption Act." Mother's Brief at 12. This review, she contends, should extend beyond merely determining if counsel was appointed to also include "review of whether a child's legal interest was represented and advanced" by counsel which requires consideration of "whether the child's preference was ascertainable from the record, and whether the attorney acting ostensibly in the role of counsel advocated for the child's preferred outcome." Id . at 10-11.

She argues that appellate courts should take an active role in reviewing the appointment of non-conflicted counsel to protect children's due process rights and also "to ensure the integrity" and fundamental fairness of termination proceedings. Id. at 13. Mother emphasizes that court review is necessary because children are unable to assert their own rights given their "legal and developmental incapacity to do so independently." Id.

In support, Mother relies upon the Superior Court's prior invocations of sua sponte review involving a statutory right to counsel for PCRA petitioners in Stossel and for parents facing termination of parental rights in X.J ., discussed supra. Mother asserts that these cases "involve a well-recognized and important right, a fundamental interest at stake in the proceeding, and involve contexts where the assistance of counsel is essential to achieving the relief sought." Id. at 19. She argues that sua sponte review of counsel's representation of a child's legal interests is similarly critical in termination proceedings given that "a child in a contested [termination of parental rights] proceeding requires the assistance of counsel to explain their options, advise them of all possible outcomes, and then zealously advocate for the outcome they desire." Id. at 20.

Mother criticizes as too limited the Superior Court's decision to review only whether counsel was appointed to represent the child, as provided in K.J.H., arguing instead that review must also encompass "whether that attorney fulfilled the role of counsel - to ascertain and advance the children's legal interest(s)." Id. at 21. Mother contends that the children's legal interests are advanced by the GAL/Counsel placing the interests on the record and advocating for those interests. She posits that "[w]here the record fails to establish a child's preferred outcome, or fails to support a conclusion that a child is not capable of expressing a preference due to age, development, or any other reason, the court cannot conclude that the child was represented by counsel as required by Section 2313(a)." Id. at 28. She rejects as insufficient the entry of an order, as in this case, merely asserting that counsel did not have a conflict representing the legal interests and best interests, as it fails to indicate the evidence upon which the trial court made it is determination nor whether the Orphans’ Court inquired regarding the Children's preferences. Id. at 22-23.

She also deems the GAL/Counsel's obligation to uphold his professional responsibilities to serve as an insufficient safeguard to the Children's right to representation of their legal interests as disciplinary proceedings against the attorney fail to restore the child's right to representation at the termination hearing. Id. at 24-25 (referencing Pa. Rule of Professional Conduct 1.7 ). Instead, she argues that judicial oversight is required to protect the children's right to representation and that such oversight requires an "affirmative inquiry into and identification of conflicts, and appointment of separate counsel when a conflict becomes apparent." Id. at 25.

The Juvenile Law Center, the Pennsylvania Legal Aid Network, and twenty-five national, state, and local organizations and individuals jointly filed an amici curiae brief in support of Mother. Amici urge the court to employ sua sponte review in termination proceedings to ensure that children receive the benefit of their statutory right to counsel to advance their legal interests, as they lack the legal capacity to assert their own rights in this critical proceeding which could permanently server the children's relationship with their biological parents. Amici emphasize that sua sponte review, however, should be limited to cases where the "record is devoid of evidence that counsel was appointed for the child, separate from the role of a GAL, or when it lacks any evidence that counsel has determined and articulated the child's desired outcome." Juvenile Law Center Amici Brief at 11 n.6.¹⁵

15 The Juvenile Court Project additionally files an amicus curiae brief in support of Mother, arguing in favor of sua sponte review to determine whether counsel placed the children's preferred outcome on the record.

Appellee CYS responds urging this Court to affirm the Superior Court's decision and decline to authorize sua sponte appellate review of GAL/Counsel's representation of children. As did the Superior Court, CYS emphasizes courts’ limited authority to engage in sua sponte review and highlights this Court's admonition against sua sponte review, which disrupts the orderly development of a case by the parties. CYS's Brief at 8 (citing Wiegand , 461 Pa. 482, 337 A.2d 256 ). Notably, it clarifies that the sua sponte review granted by the Superior Court in Stossel and K.J.H. involved whether counsel was appointed and not the quality of counsel's representation.

CYS additionally emphasizes that the orphans’ courts have developed procedures to address the appointment of counsel for children following this Court's recent pronouncements. Specifically, it recognizes that, in the wake of L.B.M. and T.S. , attorneys are now advised to place the children's preferences on the record during contested termination proceedings to demonstrate a lack of a conflict of interest. Indeed, it highlights an October 2018 seminar sponsored by the Pennsylvania Children and Youth Administrators at which Superior Court judges recommended that counsel place children's interests on the record in termination proceedings. CYS's Brief at 10, n. 2; see also Hollenbeck's Brief at 14 n.5.

CYS emphasizes that the termination proceeding in this case, however, occurred in February 2018 between this Court's decisions in L.B.M. and T.S. At such time, CYS avers that courts and counsel assumed that if an attorney serving as both GAL and the children's counsel had a conflict in representing both the best interests and legal interests, then the counsel was obligated to disclose the conflict and ask the court to appoint separate counsel. In contrast, silence of the GAL/Counsel was evidence that the interests did not conflict. It further highlights that no party raised the issue of a conflict of interest in the proceedings before the Orphans’ Court, despite ample opportunity.¹⁶

16 CYS observes that Mother has not alleged at any point in the proceedings, including before this Court, that the Children's legal interests in this case in fact conflicted with GAL/Counsel's view of their best interests. CYS's Brief at 8-9. It further emphasizes that at least J.C.C., the youngest of the children who was two at the time of the termination proceedings, was too young under this Court's jurisprudence to be capable of expressing his preferred outcome. Id. (citing T.S. , 192 A.3d at 1092 ).

Assuming arguendo that this Court allows appellate review sua sponte , CYS argues that it "should be limited to whether the record demonstrates that the child's desired outcome was known and if a conflict existed between that outcome and the GAL's determination of best interests of the child." CYS Brief's at 3. It urges the Court to guard against allowing sua sponte review of the quality of GAL/Counsel's representation.

Attorney Hollenbeck, the GAL/Counsel in this case, additionally files an Appellee brief. He emphasizes that the state of the law relating to the representation of children in termination proceedings pursuant to Section 2313(a) underwent "swift and significant changes shortly before" the termination proceedings in this case and avers that the law has been in a "state of flux" during the appellate proceedings in this case. Hollenbeck's Brief at 12. Attorney Hollenbeck emphasizes that this case arose immediately after the decision in L.B.M., when there was no stated requirement that the child's legal interests be placed on the record nor a mandate that the GAL/Counsel declare on the record that the legal interests and best interests did not conflict.¹⁷

17 Attorney Hollenbeck recognizes that following this Court's decision in T.S. and subsequent to the termination proceedings in the case at bar, a plurality of the Superior Court opined that an attorney representing the child's legal interests should place the child's preferences on the record if they were ascertainable. Hollenbeck's Brief at 14 (citing In re K.R. , 200 A.3d 969, 985 (Pa. Super. 2018) ). He observes that the court in K.R. also opined that children are deprived of their statutory right to counsel under Section 2313(a) if their appointed counsel fails to ascertain their preferences. Id.

While not included in the record, Attorney Hollenbeck avers in his brief to this Court that he met with the Children on December 18, 2017, in conjunction with a permanency review hearing to ascertain their preferred outcome. He asserts that the Children's preferred outcome aligned with his view of their best interests. As set forth above, he observes that when he was appointed as legal counsel by the trial court, the court specifically found that he could represent their legal interests without conflict. He additionally states that he met with the Children again approximately ten days prior to the termination hearing, at which time he again confirmed that their preferred outcomes aligned with his view of their best interest. Attorney Hollenbeck echoes CYS's observation that counsel's silence at the time of the termination proceedings in this case should be viewed as an indication that the best interests did not conflict with the legal interests. In support, he observes that, unlike in this case, he specifically sought the appointment of a separate counsel in four other cases when he determined that the children's legal and best interest did not align. Hollenbeck's Brief at 8-9.¹⁸

18 We recite Attorney Hollenbeck's averments in regard to his interactions with the Children as they form part of his argument, while also recognizing that they are not part of the record in this case. We emphasize that the issue before this Court is a question of law regarding whether, and if so how, appellate courts should engage in sua sponte review of GAL/Counsel's representation of children in termination hearings. Given our conclusion, we do not address the factual question of whether Attorney Hollenbeck could represent the legal interests and best interests of the Children in this case, other than to recognize that the Orphans’ Court concluded that he could do so without conflict. See Order of Jan. 8, 2018.

Assuming arguendo that this Court holds that the Superior Court should review the existence of a conflict of interest sua sponte , Attorney Hollenbeck agrees with CYS and the Juvenile Law Center that any review of that issue should be very limited.

IV. Analysis

This Court has recently and repeatedly divided over the exact contours of the statutory right to counsel provided by Section 2313(a). T.S , 192 A.3d 1080 (Pa. 2018) ; L.B.M. , 161 A.3d 172 (Pa. 2017). Nevertheless, we unanimously agreed as to the central holding that trial courts are obligated by Section 2313(a) to appoint counsel to serve the critical role of a child's attorney, zealously advocating for the legal interests of the child who otherwise would be denied a voice in the termination of parental rights proceedings. T.S. , 192 A.3d at 1082. Given the importance of having an individual dedicated to advocating for a child's legal interests, a majority of this Court have also agreed that, when a child's legal interests conflict with the child's best interests, those interests must be represented by separate individuals during the termination proceeding to ensure that the child's legal interests are presented to the orphans’ court.^{19 20}

19 We recognize that a minority of justices would have found that a child's legal interests must always be represented by counsel separate from the GAL representing their best interests. L.B.M. , 161 A.3d at 181 (Wecht, J., joined by Donohue and Dougherty, JJ.).
As is evident from his eloquent responsive opinion in this case, Justice Wecht has been consistently of the view that children are entitled to two lawyers: one to represent their legal interests and another to represent their best interests. While we respect his view and admire the zeal with which he expounds upon it, we simply disagree. We have confidence in the trial courts, as well as the child-welfare bar, to determine whether a conflict exists in the representation of children's best interests and legal interests. Moreover, we conclude that the safeguards put in place by this Court and the Superior Court sufficiently protect children's rights in these proceedings.

20 As previously stated, the child's "legal interests" represented by counsel include the child's preferred outcome, whereas the "best interests" represented by a GAL reflect what the GAL believes will provide the most beneficial outcome for the child's well-being. To explain the distinction, we have relied upon language relating to dependency actions involving similar concepts:

"Legal interests" denotes that an attorney is to express the child's wishes to the court regardless of whether the attorney agrees with the child's recommendation. "Best interests" denotes that a guardian ad litem is to express what the guardian ad litem believes is best for the child's care, protection, safety, and wholesome physical and mental development regardless of whether the child agrees.

T.S. , 192 A.3d at 1082 n.2 (quoting Pa.R.J.C.P. 1154, cmt.) ; see also L.B.M. , 161 A.3d at 174 n.2.
While "legal interests" could be viewed as encompassing a broader bundle of interests, we decline to expand the definition in the current case absent briefing on the issue.

In the present case, we specifically consider whether, and if so how, an appellate court has authority "to review, sua sponte , whether a child's legal interest was represented by counsel during an involuntary termination of parental rights hearing, as required by Section 2313(a) of the Adoption Act." In re Adoption of K.M.G. , 221 A.3d 649 (Pa. 2019). As this issue presents a question of law, our standard of review is de novo . T.S. , 192 A.3d at 1087.

To begin, we emphasize this Court's long standing policy disfavoring the exercise of sua sponte review by appellate courts and, instead, enforcing our Rules of Appellate Procedure mandating that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). We recently reiterated the rationale originally expressed in Wiegand , 337 A.2d 256 (Pa. 1975) :

The policy reasons expressed by our [C]ourt twenty-five years ago behind prohibiting the sua sponte raising of issues by an appellate court to reverse a judgment are as valid today as then. Sua sponte consideration of issues disturbs the process of orderly judicial decision making. A reviewing court addressing an issue on its own deprives counsel of the opportunity to brief and argue the issues and the court the benefit of counsel's advocacy. It renders the lower proceedings a mere dress rehearsal for further appellate review.

Danville Area School Dist. v. Danville Area Educ. Ass'n, PSEA/NEA , 562 Pa. 238, 754 A.2d 1255, 1259 (2000) (internal citation omitted); see also Johnson v. Lansdale Borough , 637 Pa. 1, 146 A.3d 696, 709 (2016). With this general precept in mind, we consider the arguments forwarded in favor of sua sponte review in the case at bar.

A. Sua sponte review of whether an orphans’ court appointed counsel for a child pursuant to Section 2313(a)

We initially observe that the Superior Court in the case at bar reaffirmed its prior holding in K.J.H. , mandating that an appellate court sua sponte verify that the orphans’ court appointed counsel to represent the legal interests of a child involved in a termination of parental rights case. K.M.G. , 219 A.3d at 668. As explained below, we agree with the Superior Court that sua sponte review of the appointment of counsel is necessary to fulfil the mandate of Section 2313(a), which unambiguously provides that "[t]he 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." 23 Pa.C.S. § 2313(a).²¹

21 Section 2313 is entitled "Representation" and includes subsection (a), which 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). The subsequent subsections of Section 2313 direct the provision of counsel for parents and address the payment of costs.

As noted, this Court has interpreted this section as requiring "that the common pleas court appoint an attorney to represent the child's legal interests, i.e. the child's preferred outcome." T.S. , 192 A.3d at 1082. Moreover, we have held that "the failure to appoint a separate attorney to represent the child's legal interests constitutes structural error, meaning it is not subject to a harmless-error analysis." Id. ; L.B.M. , 161 A.3d at 183. We additionally concluded that the issue was non-waivable, because the right belonged to the child who, given that he or she was unrepresented, could not have challenged the lack of counsel. T.S. , 192 A.3d at 1087.

As in T.S. , we emphasize that children do not have that 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).

B. Sua sponte review of whether the orphans’ court determined that counsel could represent a child's legal interests and best interests without conflict

We additionally conclude that where an orphans’ court has appointed a GAL/Counsel to represent both the child's best interests and legal interests, appellate courts should review sua sponte whether the orphans’ court made a determination that those interests did not conflict. We emphasize that appellate review of this question does not involve second-guessing whether GAL/Counsel in fact had a conflict, as discussed in the next section of this opinion, but solely whether the orphans’ court made the determination in the first instance.

We again observe that this Court has unanimously determined that a single attorney cannot represent a child's best interests and legal interests if those interests conflict. T.S. , 192 A.3d at 1082. Accordingly, in fulfilling its duty under Section 2313(a) as construed by this Court, the orphans’ court must determine whether counsel can represent the dual interests before appointing an individual to serve as GAL/Counsel for a child. Given the essential nature of the GAL/Counsel's ability to represent a child without conflict and this Court's mandate that the orphans’ court make that determination prior to appointment, we conclude that appellate courts should verify that the orphans’ court indicated that the attorney could represent the child's best interests and legal interests without conflict.

We emphasize that the sua sponte review mandated by this section and the prior section involve binary, record-based determinations. Specifically, we grant sua sponte review to evaluate (1) whether the orphans’ court appointed counsel to represent the legal interests of the children and (2) if the appointed counsel also serves as GAL, whether the orphans’ court determined that the child's best interests and legal interests did not conflict. Both inquiries involve a yes or no answer that can be addressed by a review of the orphans’ court order (or lack thereof) appointing counsel to represent a child under Section 2313(a). We conclude that this limited review strikes an appropriate balance between protecting children who cannot assert their own right to counsel, while insuring the least disruption to "the process of orderly judicial decision making" in termination proceedings. Danville Area School Dist , 754 A.2d at 1259.

C. Sua sponte review to determine if a conflict exists that would prevent counsel's representation of children's legal interests and best interests

In contrast to the discrete sua sponte review adopted above, we decline to authorize sua sponte appellate review of whether the record demonstrates that GAL/Counsel had a conflict in representing both a child's legal interests and best interests. We conclude that review of the existence of a conflict does not involve a simple record-based determination, but instead would require appellate courts to address a fact-specific determination of whether and to what extent a child's preferred outcome conflicts with a GAL/Counsel's view of her best interests.

The determination of whether a conflict exists does not necessarily result in a yes or no answer but involves a nuanced determination. Indeed, both the attorney's view of the child's best interests and the child's preferred outcome likely lie, somewhat nebulously, on a continuum between strongly favoring termination and strongly disfavoring termination. It is not for an appellate court to determine how closely the interests must align or overlap to negate the existence of a conflict. We are especially hesitant to have appellate courts reweigh an orphans’ court's determination that the interests do not conflict, where the orphans’ court has witnessed the parties over the course of the dependency and termination proceedings and is presumably aware of the relationship formed between the GAL/Counsel and the children. See In re T.S.M. , 620 Pa. 602, 71 A.3d 251, 267 (2013) (deferring to "trial courts that often have first-hand observations of the parties spanning multiple hearings" in termination of parental rights proceedings).

We, thus, conclude that the Superior Court in the case at bar made the correct distinction in regard to issues it should raise sua sponte by mandating review of the existence, but not the adequacy, of statutorily-required counsel for children in termination proceedings. Unlike the appointment of legal counsel, the potential conflict of interest in a GAL/Counsel's representation of a child is not something that appellate courts should review sua sponte , without the benefit of appellate advocacy. Where an orphans’ court enters an order appointing counsel to represent the child and has determined that counsel does not have a conflict representing the child's best and legal interests, an appellate court should not look behind the face of the order, sua sponte, to determine whether counsel had a conflict in representing the child.²²

22 We additionally observe that review of the propriety of counsel's appointment contrasts with the Superior Court's handling of other statutory provisions regarding the right to counsel. Specifically, in Stossel , 17 A.3d 1286, the Superior Court deemed it appropriate to address sua sponte the failure to provide a petitioner with his statutory right to counsel in a first PCRA proceeding or to determine if the petitioner knowingly, voluntarily, and intelligently waived his right to counsel. Similarly, the Superior Court in X.J. , 105 A.3d 1, approved the sua sponte review of the existence of counsel to represent the parents in a termination hearing. In neither Stossel nor X.J. , however, did the Superior Court review sua sponte the adequacy or effectiveness of the counsel.

D. Sua sponte review of whether GAL/Counsel sufficiently advocated for the children's preferred outcome during the termination proceedings

We additionally reject the argument that appellate courts should review sua sponte whether a GAL/Counsel sufficiently advocated for the child's legal interests by requiring the child's preferred outcome to be placed on the record. We observe that Subsection 2313(a) 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. As stated above, it provides, "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." 23 Pa.C.S. § 2313(a). It is inappropriate and, indeed, unwise for this Court to engage in the judicial creation of what amounts to new statutory duties where we have repeatedly counseled that "[w]hen interpreting the meaning of a statute, we must not ‘add, by interpretation, a requirement not included by the General Assembly.’ " Kegerise v. Delgrande , 646 Pa. 180, 183 A.3d 997, 1005 (2018) (quoting Commonwealth v. Giulian , 636 Pa. 207, 141 A.3d 1262, 1268 (2016) ).

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 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.

Instead, we leave the decision of whether to place the child's preference on the record to the child's counsel based upon counsel's legal determinations in representing his client, as well as the orphans’ court which has often witnessed the child, relevant family members, and other stakeholders through months of hearings, sitting as both the juvenile court and orphans’ court. See T.S.M. , 71 A.3d at 267. Accordingly, we reject sua sponte review of whether counsel placed the child's interest on the record.

E. Application in the Case at Bar

We now apply the sua sponte review set forth above to the case at bar. Specifically, we consider whether the Orphans’ Court appointed counsel to represent the Children's legal interests in the contested termination of Mothers’ parental rights as required by Section 2313(a) and whether the Orphans’ Court determined that the appointed counsel could represent the Children's best interests and legal interests without conflict, as mandated by this Court's precedent applying Section 2313(a), see T.S. , 192 A.3d at 1082.

We observe that the Orphans’ Court in the case at bar unequivocally set forth the answer to both inquiries in its Section 2313(a) order appointing Attorney Hollenbeck. Specifically, on January 8, 2018, the Orphans’ Court entered an order on the record for each child appointing Attorney Hollenbeck, who was then serving as the Children's GAL, to represent the legal interests of the four children. On the face of the orders, the court expressly "found that the Guardian ad litem , Mark J. Hollenbeck, Esq., may adequately represent both the child's best interests and legal interests without conflict." Order of Jan. 8, 2018. We conclude that these orders satisfy the necessary sua sponte review to conclude that the Orphans’ Court appointed non-conflicted legal counsel such that a remand is not required in this case.

V. Conclusion

For the reasons set forth above, we conclude that our appellate courts should engage in limited sua sponte review of whether children have been afforded their statutory right to legal counsel when facing the potential termination of their parents’ parental rights. Specifically, courts should determine (1) if the trial court appointed statutorily-mandated counsel to represent a child's legal interests as required by Section 2313(a) and (2) where a GAL/Counsel was appointed to represent both the child's legal and best interests, whether the orphans’ court determined that those interests did not conflict. In so doing, we do not authorize sua sponte review of whether the GAL/Counsel had a conflict in representing both a child's legal interests and best interests or whether counsel placed the child's preferred outcome on the record, as those fact-intensive, nuanced determinations are not well-suited for sua sponte appellate review.

Applying the relevant review to the case at bar, we conclude that the Orphans’ Court properly appointed Attorney Hollenbeck as legal counsel for the Children after determining in an order on the record that the attorney could represent the Children's best interests and legal interests without conflict. We observe that the grant of review in this case did not encompass a review of the merits of the termination decision, and therefore, we do not speak to those issues. Accordingly, we affirm the decision of the Superior Court's order, which affirmed the termination of Mother's parental rights to the Children in this case.

Chief Justice Saylor and Justices Todd, Dougherty and Mundy join the opinion.

Chief Justice Saylor files a concurring opinion in which Justice Dougherty joins.

Justice Dougherty files a concurring opinion.

Justice Wecht files a concurring and dissenting opinion in which Justice Donohue joins.

CHIEF JUSTICE SAYLOR, concurring

I join the majority opinion.

Although our Juvenile Court Procedural Rules and numerous opinions appear to equate the legal interests of a child with the child's express wishes, I take this opportunity to clarify my view that the child's legal interests are broader in scope. See, e.g. , National Ass'n of Counsel for Children, NACC Recommendations for Representation of Children in Abuse and Neglect Cases 11 (2001) (observing that the legal interests of the child may be unclear or contradictory, for example, "a child has a legal interest in being protected from abusive or neglectful parents").^{1 1 1} What Section 2313(a) of the Adoption Act requires is "counsel to represent the child in an involuntary termination proceeding," 23 Pa.C.S. § 2313 (emphasis added), which I take to signify a client-directed relationship akin, to the extent possible, to one enjoyed by an adult. Accord ABA Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings § 7(c) (2011), Commentary ("The child's lawyer helps to make the child's wishes and voice heard but is not merely the child's mouthpiece. As with any lawyer, a child's lawyer is both an advocate and a counselor for the client.").

1 These recommendations are presently under review for revisions. See National Ass'n of Counsel for Children, Standards of Practice https://www.naccchildlaw.org/page/StandardsOfPractice (last visited Aug. 14, 2020).

1 I emphasize, however, where the child's attorney acting in a dual role receives information the child provided in confidence, which the attorney would otherwise use to advance the child's interests in a manner at odds with the child's preferences, it is unequivocally the imperative duty of the child's attorney to inform the court of a conflict of interest and request separate appointment of a GAL. See Pa.R.P.C. 1.7. ("lawyer shall not represent a client if the representation involves a concurrent conflict of interest"); Pa.R.J.C.P. 1154 cmt. ("[T]he guardian ad litem for the child may move the court for appointment as legal counsel and assignment of a separate guardian ad litem when, for example, the information that the guardian ad litem possesses gives rise to the conflict and can be used to the detriment of the child.").

1 23 Pa.C.S. § 2313(a).

The ABA Model Act's discussion of a substituted judgment determination, as contrasted with a best-interests analysis, see id. § 7(d) also has salience, in my view. See ABA Model Act § 7(d), Commentary ("A substituted judgment determination is not the same as determining the child's best interests; ... "[r]ather, it involves determining what the child would decide if he or she were able to make an adequately considered decision."). Thus, I would also clarify that a child's legal counsel in involuntary termination proceedings should carefully screen against conflicts -- not only between the expressed and best interests of the child -- but also between his substituted judgment determination (applicable where children lack the capacity to express their wishes) and a best-interests analysis. When either sort of conflict exists, counsel should seek the appointment of an independent, best-interests advocate.

JUSTICE DOUGHERTY, concurring

I fully join the majority opinion, as well as the concurring opinion of Chief Justice Saylor. I write separately to underscore my respectful disagreement with certain notions expressed by Justice Wecht in his concurring and dissenting opinion.

Though I agree, consistent with this Court's prior jurisprudence, the right to representation of the child's legal interests is a non-waivable right of the child which risks being irreversibly overlooked if counsel advances a child's best interests without regard for the child's preference, and I appreciate Justice Wecht's effort to protect an interest courts have confronted with varying consistency in these sensitive proceedings, I nevertheless view his approach as problematic within the context of the legal representation of children, particularly in termination of parental rights proceedings.

My learned colleague correctly notes that "[e]ffective representation of a child requires, at a bare minimum, attempting to ascertain the client's position and advocating in a manner designed to effectuate that position." Concurring and Dissenting Opinion, at ––––, quoting In re K.R. , 200 A.3d 969, 986 (Pa. Super. 2018). Yet I disagree that our law requires an appellate court's sua sponte scrutiny of the record in a termination of parental rights proceeding to determine the adequacy with which the child's attorney demonstrated he fulfilled these duties. Apparently, we all recognize the discharge of those duties requires varying approaches and time commitments depending upon the unique needs, capacities, and willingness of the individual child in every case — and our law has adopted no guidelines or standards with which to assess the adequacy of child's counsel's representation which, likewise, will necessarily vary with every individual case.

But I do not believe the absence of a ruling requiring the efforts of child's counsel be placed on the record allows the child's attorney to otherwise derogate his duties to his client. See id. at ––––. While I would emphatically agree an attorney must not proceed with a conflict of interest through a hearing to involuntarily terminate a client's parent's rights, an attorney must not proceed with a conflict of interest at any time. An evidentiary hearing regarding the termination of a parent's rights will generally not adequately reflect how any party's counsel ascertained a client's position. Counsel for a child, even if acting in a dual role as GAL, is not the court's witness, but is bound by the court's evidentiary rules, and as we have emphasized, owes a duty only to the child — the same duties of competence, zealous advocacy, and confidentiality as any other attorney's duty to any other client.¹ See In re T.S., 648 Pa. 236, 192 A.3d 1080, 1087 (2018) ("The statutory right [to counsel] under Section 2313(a) belongs to the child, not the parent."). As the non-moving party in this proceeding, the children's attorney was charged with representing the children's best and legal interests as he understood them; thus if, in his assessment, the evidence proffered by other parties sufficiently established a basis for the outcome consistent with his clients’ interests, a fair exercise of judgment would be to refrain from providing more. I thus view the proposed added layer of scrutiny of what counsel did not do in this case, the questions he did not ask, the witnesses he did not call, or the arguments he did not make, at a hearing in which he was not required to expound upon his efforts to adequately represent his clients, as a tenuous basis for reversal.

To the extent the concurring and dissenting opinion suggests the Adoption Act requires the child's preferences to be factored into consideration of the "developmental, physical and emotional needs and welfare of the child" pursuant to Section 2511(b), see Concurring and Dissenting Opinion, at –––– n.59 (quoting 23 Pa.C.S. § 2511(b) ), I caution courts and practitioners from equating these principles. Although this Court has developed that "the determination of the child's ‘needs and welfare’ requires consideration of the emotional bonds between the parent and child[,]" In re T.S.M ., 620 Pa. 602, 71 A.3d 251, 267 (2013) (emphasis added), we have not developed how the child's "needs and welfare" are served by their preferences. Indeed, the jurisprudence in this area more clearly indicates a recognition of children's preferences and conflicting loyalties not serving their needs and welfare.^{2 2} See id . at 268, quoting In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) ("Even the most abused of children will often harbor some positive emotion towards the abusive parent."). I further caution against adopting such an equivalency where, as is the case here, some pieces of testimony, such as those related in the concurring and dissenting opinion, demonstrate witnesses observed the children expressing attachment to their mother, while yet other countervailing testimony by the same witnesses, not incorporated into that same analysis, also demonstrate evidence of a bond the children share with their pre-adoptive caregiver, and the harm the children suffered when their mother, who had unlimited ability to visit with the children, failed to call, show for visits, or otherwise remain in contact with the children for weeks at a time.^{3 3} Furthermore, by assimilating consideration of the child's preferences within the grounds for involuntary termination under Section 2511(b), the rule proposed in the concurring and dissenting opinion would reassign the burden for proving the grounds are met from the party seeking termination — here, and in most cases, the county children and youth agency — to a non-moving party whose duty is solely to the child. See , e.g. , In re E.M. , 533 Pa. 115, 620 A.2d 481, 484 (1993) ("[i]n a proceeding to involuntarily terminate parental rights, the burden of proof is upon the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so").

2 Additionally, I note that a showing of the "developmental, physical and emotional needs and welfare of the child" appears well within the ambit of the GAL's function to inform the court of what "is best for the child's care, protection, safety, and wholesome physical and mental development[,]" see Pa.R.J.C.P. 1154 cmt., and is therefore perhaps more appropriately considered within the context of a child's best interests, rather than as a potentially conflicting preference.

2 Maj. Op. at ––––.

3 See, e.g ., N.T., 2/18/2018 at 39 ("the kids have a really good bond with [their uncle]"), 40 (referencing "mom's lack of trying or lack of being involved"), 65 ("kids are happier [with their uncle]; they're not as stressed out as they were [living with their mother]"), 67 (Children "really bonded" to their uncle and his wife), 74 (mother's "instability has caused a lot of distress on the part of the children ... when they were expecting her to call and tell them good night she wouldn't call or she wouldn't show up for visits – it caused a lot of stress for the children – and that instability is just not a concern where they're at [with uncle]"), 80 (mother's contact sporadic despite caregiver's open-door policy), 107 (children thriving in environment they're in and "fully bonded" with uncle and his wife; severing that bond would be more detrimental than severing parental bond with mother). In addition, I view consideration of any testimony from the children's maternal grandmother, see Concurring and Dissenting Opinion at –––– – ––––, or any characterization of it as "credited," see id . at ––––, as improper due to the orphans’ court's rejection of that testimony. See Orphan's Court Memorandum and Order dated 3/16/2018 at 7.

3 See id. at –––– – ––––.

Consequently, while I am well aware of the problem — i.e. , where a child's attorney adds little evidence to the record, it may not be possible to discern from the record how the attorney advanced the child's legal interests — I counter that requiring review of counsel's efforts to ascertain the child's wishes is not so simple, and scrutiny of the particular array of strategies used by child's counsel should not controvert the focus of the proceeding.^{4 4}

4 I do not support "dispensing" with a requirement that counsel should make a record in a manner that suits the circumstance. See Concurring and Dissenting Opinion, at –––– n.64 (Wecht, J.). Indeed, I join the majority's opinion in full, including its recognition that, depending upon the circumstances, it may be a helpful practice for child's counsel to place certain information on the record, which can aid appellate review. See Majority Opinion, at ––––. I would not endorse the expansive review proposed by Justice Wecht in the absence of rule-making with regard to the representation of children in termination proceedings or legislative pronouncement statutorily incorporating such requirements into the proceeding under the Adoption Act.

4 Order, In re: K.M.G. , No. 42-17-0239, 1/8/2018 ("Orphans’ Court Appointment Order") (emphasis added); see also Order, In re: A.M.G. , No. 42-17-0240, 1/8/2018; Order, In re: S.A.G. , No. 42-17-0241, 1/8/2018; Order, In re: J.C.C. , No. 42-17-0242, 1/8/2018.

JUSTICE WECHT, concurring and dissenting

Our General Assembly made a promise to the children of our Commonwealth: "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."¹ This promise is not a suggestion. It is not a "best practice." It is not something that we hope our trial courts might consider. It is the law.

The Majority adopts an impoverished view of the statutory mandate; it opines merely that an appellate court "should verify that the orphans’ court appointed counsel to represent the child's legal interests."² This does not go far enough. In these critically important proceedings, with permanent severance of the child-parent relationship on the line, children are entitled to receive the full benefit of their statutory right to counsel. This is a matter of statutory right, not of judicial grace. The right is hollow without firm assurance that legal counsel has no conflicting obligation that interferes with zealous advocacy in furtherance of the child's interests. To fulfill the statutory mandate, sua sponte appellate review of the appointment is required.

The Majority recites the facts that led to the termination of T.L.G. ("Mother")’s parental rights.³ On February 24, 2017, after a period of dependency, the juvenile court granted CYS's request to remove K.M.G., A.M.G., S.A.G., and J.C.C. ("Children") from Mother's home and to place them in the home of the aunt and uncle ("Foster Parents") of C.J.C. ("Father"). After observing Mother's sustained inability to resolve recurring problems with Children's care, CYS filed petitions to involuntarily terminate Mother's parental rights.

On January 8, 2018, the orphans’ court appointed Mark Hollenbeck, Esquire ("Hollenbeck"), who had served as Children's guardian ad litem ("GAL") since 2016, to serve thereafter as both GAL and legal counsel for Children in the termination of parental rights ("TPR") proceeding. With no appointment colloquy or other proceeding, the orphans’ court entered an identical order at each docket number stating:

AND NOW, this 8th day of January, 2018, a Petition having been filed to terminate the parental rights of Mother; and, the court having found that the Guardian ad litem , Mark J. Hollenbeck, Esq., may adequately represent both the child's best interests and legal interests without conflict (See , [ In re D.L.B. , 166 A.3d 322 (Pa. Super. 2017) ] ); IT IS ORDERED AS FOLLOWS: Mark J. Hollenbeck, Esq., the [GAL] for [the child], shall represent both the best interests

and legal interests of the subject child. Any party objecting to said dual representation shall file a written objection within ten (10) days of the date of this order.⁴

As GAL, Hollenbeck was tasked with advocating Children's best interests. " ‘Best interests’ denotes that a guardian ad litem is to express what the guardian ad litem believes is best for the child's care, protection, safety, and wholesome physical and mental development regardless of whether the child agrees."⁵ But as Section 2313(a) "legal counsel,"⁶ Hollenbeck had an additional duty, a very different one: he was required to advocate for Children's legal interests. " ‘Legal interests’ denotes that an attorney is to express the child's wishes to the court regardless of whether the attorney agrees with the child's recommendation."⁷ The distinction between the two is critically important, because a GAL's assessment of a child's best interests will not always align with the child's legal interests—the child's own preferences. In this particular case, no party objected to the orphans’ court's dual appointment, that is, its decision to designate Hollenbeck to represent both Children's "best interests" and Children's "legal interests."

5 Pa.R.J.C.P. 1154, cmt.

6 Section 2313(a) of the Adoption Act 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).

7 See Pa.R.J.C.P. 1154, cmt.

On February 12, 2018, the orphans’ court held a hearing on CYS's petition to involuntarily terminate Mother's parental rights.⁸ At the time of the hearing, A.M.G. was eight years old, S.A.G. was six, K.M.G. was five, and J.C.C. was two. Present at the hearing were attorneys for CYS and for Mother, as well as Hollenbeck. The Majority reviews the evidence that the orphans’ court relied upon in terminating Mother's parental rights, but the Majority's account omits an important (and distinctly troubling) pattern in Hollenbeck's participation.

8 Father did not contest the termination of his parental rights.

Specifically, although only Children could speak conclusively about their feelings concerning termination, Hollenbeck asked none of the nine testifying witnesses any questions that might illuminate Children's feelings about the termination of Mother's parental rights. For example, under questioning by CYS's attorney, CYS intake worker Megan Messler described how J.C.C. specifically had a "good bond with mom."⁹ Nonetheless, Hollenbeck did not further inquire about the bond between any of the other Children and Mother or about Children's feelings about the situation.¹⁰

9 Notes of Testimony, TPR hearing, 2/12/2018, at 38 ("N.T.").

10 Id. at 47-52.

Joshua Blotzer, a CYS caseworker, testified that, when Children visited with Mother while they lived in Foster Parents’ home, "they would smile, they'd try to get her attention, you know they'd want to interact with her."¹¹ Hollenbeck did not ask Blotzer about Children's relationship with Mother or Children's wishes.

11 Id. at 80.

Jonathan Braeger, the CYS Supervisor, also testified. Braeger stated that "[t]he children do say mom when they talk with mom—and when I've talked to them at home, they have—they do mention mom."¹² But Hollenbeck's only question for Braeger involved Children's dental treatment.

12 Id. at 107.

Tate Slavin-Miller, a court-appointed caseworker, testified that Children wanted to live together. She noted that Children were separated in different foster homes for a spell, and she "noticed that the children were really craving to be together and to be reunited."¹³ When Children were reunited with Mother briefly, Slavin-Miller "saw them come together and really thrive off of being together."¹⁴ Asked whether Children had a bond with their mother, Slavin-Miller replied:

13 Id. at 117.

14 Id .

I feel like yes in the beginning I know that they—they often talk about their mother and then seeing them in the home with her I—to be perfectly honest, I know that they love their mother and they did have a relationship with her but that bond of like parent/children I always hoped that it would occur and there would be that separation but in my time with the children being in home with her I just saw the disconnect in that regard. But I do know that they—that they love their mother.¹⁵

15 Id. at 122.

Slavin-Miller also recalled how, while in foster care, Children would eagerly await phone calls from Mother and would be unhappy if Mother did not call.¹⁶ In questioning Slavin-Miller, Hollenbeck failed to develop the record on these or any related points.

16 Id. at 126.

Children's maternal grandmother ("Grandmother") also testified. Mother's counsel asked Grandmother if she had seen Children and Mother interact, and Grandmother told the court that she had. Grandmother stated that "the day before Christmas[, Children] were excited they were getting presents from grandma and mommy."¹⁷ Grandmother also told Mother's counsel how the relationship between Mother and Children had become "a little strained" and that Children were "almost afraid to talk to" Mother in recent months.¹⁸ Hollenbeck did not see fit to ask any questions.¹⁹

17 Id. at 179.

18 Id. at 180.

19 Hollenbeck similarly asked few or no questions, and none seeking to illuminate Children's preferences, of testifying witnesses Michelle Hatch, a Housing Case Manager for the McKean County Redevelopment and Housing Authority; Edward McQuillen, a CYS caseworker; R.W., Father's paternal uncle and one of Children's foster parents; or Father.

Counsel for CYS and Mother, as well as Hollenbeck, each made closing arguments. CYS's attorney told the orphans’ court that "[a]ll of those witnesses have indicated to the court that while the children have a relationship with their mother and love their mother but [sic ] they are bonding well in the foster home."²⁰ Mother's counsel argued that "there is a bond between mom and the kids, there was testimony presented that the children seemed to be more despondent, more upset, worse behaved at times when the children were not having regular contact with mother."²¹

20 Id. at 198.

21 Id. at 201-02.

In relevant part, Hollenbeck closed as follows:

I support [CYS's] recommendation [to involuntarily terminate Mother's parental rights]. Threshold thought I always have is in some of these cases are we dealing with bad people or not. This is not that type of case. We're dealing with a lack of capacity issue, in my opinion. ... We have children that were not going to school before[,] now they're thriving in school, we had this head lice problem that just could not be fixed until [Foster Parents] got on top of it and fixed it, we have this dental issue that still, paying dividends in a bad way, with the kids and not being overly dramatic but there was testimony it could have resulted in death if it had continued to be ignored. So I just think [Mother] loves the kids, I don't think she did any of this on purpose, I don't think she had the capacity to properly care for these children and I think it's in their best interest to grant [CYS's] Petition.²²

22 Id. at 202-03.

Hollenbeck made no comment whatsoever regarding Children's preferences or regarding his efforts (if any there were) to ascertain their feelings, nor did he aver that Children's preferences were consistent with his assessment of their best interests. Thereafter, the trial court concluded that CYS had established by clear and convincing evidence that Mother's parental rights should be terminated.²³

23 See Maj. Op. at ––––.

Mother appealed to the Superior Court, arguing that CYS had not met its burden to sustain involuntary termination of her parental rights under Section 2511(a). Although Mother did not allege a conflict between Hollenbeck's service as GAL and his representation of Children's legal interests, the Superior Court, sitting en banc , considered on its own initiative—with the benefit of supplemental briefing by the parties and amici curiae —whether it could review the record sua sponte to consider whether Hollenbeck's assessment and understanding of Children's best interests as GAL was in harmony with what he had gleaned of Children's legal interests in his role as legal counsel—or whether and how Hollenbeck had gleaned Children's feelings and preferences to begin with.²⁴

24 See In re K.M.G. , 219 A.3d 662, 669 (Pa. Super. 2019) (en banc ).

By that time, this Court had made clear that an orphans’ court's failure to appoint Section 2313(a) legal counsel is structural error and therefore non-waivable on appeal.²⁵ Superior Court decisions had established that, as such a failure is structural and non-waivable error, an appellate court can review sua sponte the narrow question of whether legal counsel had been appointed at all. The K.M.G. court effectively took for granted the validity of those decisions, and this Court now adopts their holdings.²⁶ But the Superior Court probed the matter more deeply, asking whether it could reach past the mere fact of the appointment to assess whether cross-appointed counsel's assessment of Children's best interests conflicted with Children's legal interests or whether counsel failed to attend carefully enough to Children's legal interests to identify such a conflict, if any.

25 See , e.g. , In re T.S. , 648 Pa. 236, 192 A.3d 1080, 1086-87 (2018).

26 See K.M.G. , 219 A.3d at 668 (citing In re K.J.H. , 180 A.3d 411 (Pa. Super. 2018) ); Maj. Op. at –––– – ––––.

The Superior Court majority determined that such an assessment was beyond its purview. It deemed review unnecessary because three mechanisms exist which ensure "that the GAL does not have a conflict at an involuntary termination hearing."²⁷ First, Pennsylvania Rule of Professional Conduct 1.7²⁸ requires an attorney to notify the client if he or she has a conflict, a requirement that would appear by extension to require notifying the court where the client is a child and the conflict arises from a cross-appointment as GAL and legal counsel. Second, "any party has standing to raise the issue of a potential conflict before the orphans’ court or Superior Court."²⁹ Third, the "orphans’ court ... often decides this issue."³⁰

27 K.M.G. , 219 A.3d at 669.

28 Rule 1.7 states that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." Pa.R.P.C. 1.7(a).

29 K.M.G. , 219 A.3d at 669.

30 Id. at 669.

President Judge Emeritus Bender, joined by Judges Kunselman and McLaughlin, disagreed. The dissent observed that "a failure to correct such an error at this juncture may be the only opportunity to correct a possible injustice."³¹ And if the appellate court found (sua sponte ) that the child's best and legal interests appeared to conflict, or found that the record contained nothing to indicate the presence or absence of such a conflict, the court should remand the case for the orphans’ court to review the extant evidence or further develop the record. "Merely allowing an objection to be raised in response to the [Orphans’ Court Appointment Order] is insufficient because the right to counsel belongs to the children, not to a parent or an agency."³² Appellate review of whether cross-appointed counsel is conflicted should not depend upon a third party's election to call the matter into question, but should proceed as a matter of course.

31 Id. at 678 (Bender, P.J.E., dissenting). Judge Bender's hedge here seems unwarranted. If the Superior Court may not address the issue sua sponte , then neither may this Court. The issue simply will go unreviewed.

32 Id. at 679 (Bender, P.J.E., dissenting).

With the intermediate court divided, this important issue has now come before us. We do not write on an utterly blank slate, as some principles appear in the statute itself and in our precedents interpreting it. In a TPR proceeding, the "unambiguous language" of Section 2313(a) requires "that a lawyer who represents the child's legal interests, and who is directed by the child, is a necessity."³³ "[O]ur General Assembly has decided that counsel for the child is required because of the primacy of children's welfare, the fundamental nature of the parent-child relationship and the permanency of termination."³⁴ "[W]here there is a conflict between the child's legal interests and [the child's] best interests, [a GAL] ..., who advocates for a child's best interests, cannot simultaneously represent the child's legal interests."³⁵ But "where a child's legal interests and best interests do not diverge in a termination proceeding, [a GAL] representing the child's best interests can also fulfill the role of the attorney appointed per Section 2313(a) to represent the child's legal interests."³⁶ Determining whether a child's legal and best interests diverge requires the orphans’ court to determine whether a child can express a preference and what that preference may be.³⁷ If the child's wishes "cannot be ascertained, the GAL has no duty to ‘advise the court’ of such wishes," and the cross-appointment of one attorney to serve as GAL and legal counsel does not violate Section 2313(a).³⁸

33 In re L.B.M. , 639 Pa. 428, 161 A.3d 172, 180 (2017). Although the lead opinion in L.B.M. did not command a majority of justices as to all of its parts, part II(A), in which this passage appears, was supported by a majority. Hereinafter, citations to L.B.M . refer to those portions of the lead opinion that commanded a majority of justices except where I use "plurality" in the discussion or citation.

34 Id. at 183.

35 T.S. , 192 A.3d at 1082.

36 Id. at 1088. But see T.S. , 192 A.3d at 1099-1105 (Wecht, J., dissenting), infra text accompanying nn. 74-75.

37 See id. at 1088.

38 Id. at 1089-90.

The right "belongs to the child, not the parent."³⁹ When "[t]here was no attorney representing solely the children's legal interests who could have raised their rights in the [orphans’] court, ... the children plainly could not have done so themselves."⁴⁰ As the Superior Court highlighted in K.J.H. , a child's age and lack of representation render him or her incapable of identifying an orphans’ court error, such as failing to appoint counsel.⁴¹ Thus, when a child's best and legal interests diverge, "the failure to appoint a separate attorney to represent the child's legal interests constitutes structural error."⁴² As structural error, and given a child's peculiar inability to monitor the regularity of his or her own legal proceedings, challenges to legal counsel's performance may not be waived for purposes of appeal.⁴³ Thus, the Majority holds (and I agree) that the Superior Court should confirm sua sponte that Section 2313(a) counsel was appointed by the orphans’ court.

39 Id. at 1087.

40 Id. at 1087 (citing K.J.H. , 180 A.3d at 413 ("Child, due to his minority and lack of representation in the orphans’ court, could not raise this issue himself.")).

41 K.J.H. , 180 A.3d at 413 ; cf. In re T.M.L.M. , 184 A.3d 585, 590 (Pa. Super. 2018), overruled by K.M.G. , supra ("Not only do children not have a say in the appointment of counsel, due to their minority, most children are not in a position to assess whether counsel has represented their interests effectively.").

42 T.S. , 192 A.3d at 1082.

43 See Maj. Op. at –––– – –––– (citing L.B.M. ; T.S. ; supra ).

Such is the current state of the law. But the question that concerns me presently isn't the fact of sua sponte review but its scope. The Majority restricts the scope of review to the vanishing point, leaving little more than a pro forma exercise, exposing children to precisely the risks of harm that appellate review should seek to eliminate. The General Assembly could not have intended to confer such a specific and important right to counsel only to insulate its fulfillment from appellate review.

In L.B.M. , we emphasized that: "The issue here is not whether or not the child's legal interests must be served (they must), but rather whether the General Assembly's mandate that counsel must be appointed for the child may be subverted or ignored (it may not)."⁴⁴ "[T]he recognized purpose of the statute is to ensure that the needs and welfare of the children involved are actively advanced."⁴⁵ Whether a child's legal interest was represented in a TPR proceeding is a distinct question from whether an attorney was appointed at all. There is no material difference between the failure to appoint counsel and the appointment of conflicted counsel. As Chief Justice Saylor commented separately in L.B.M. , because "the right to counsel in [the TPR] setting must be as scrupulously protected as the right to counsel in criminal cases," we should not "distinguish between a court's failure to appoint counsel and the appointment of conflicted counsel."⁴⁶ The Chief Justice further observed that, "where zealous representation is made impossible because of an attorney's duties as [GAL]—or, for that matter, any other reason—the court must refrain from making the appointment and should find a suitable [other] candidate."⁴⁷ In the face of this wisdom, the Majority here insists on limiting appellate review to whether counsel was appointed at all—unless, fortuitously, someone other than the child happens to raise and argue the question. This leaves the right to unconflicted counsel in the hands of third parties and renders the child a passive witness, a muzzled observer to the vindication or sundering of the child's own wishes. In short, it leaves the right to chance.

44 L.B.M. , 161 A.3d at 180 n.12.

45 Id. at 180.

46 Id. at 184 n.2 (Saylor, C.J., concurring) (citing, e.g. , Commonwealth v. Hawkins , 567 Pa. 310, 787 A.2d 292, 297-98 (2001) ).

47 Id. at 184 (Saylor, C.J., concurring); accord T.M.L.M. , 184 A.3d at 590 ("[W]here a court appoints an attorney ostensibly as counsel, but the attorney never attempts to ascertain the client's position directly and advocates solely for the child's best interests, the child has been deprived impermissibly of his statutory right to counsel serving his legal interests.").

The three mechanisms that the Superior Court cited as ensuring that a child's legal interests are heard and considered neither independently nor collectively can assure a child's statutory right to unconflicted legal counsel.⁴⁸ First, the intermediate court observes that, as noted, Pennsylvania Rule of Professional Conduct 1.7 requires an attorney to disclose any conflict, serving as a bulwark against counsel persisting in a cross-appointment capacity upon learning of a conflict between his or her obligations as GAL and legal counsel.⁴⁹ But as amici curiae the Juvenile Law Center and its learned colleagues observe, even if an attorney violates Rule 1.7 and the Office of Disciplinary Counsel brings an action against that attorney, such action "does not vindicate the rights of the client who had an attorney who acted unethically."⁵⁰ Aside from its deterrent value, Rule 1.7 does nothing to enforce the General Assembly's command that a child's parent's rights not be terminated without considering the child's legal interests as determined and expressed by unconflicted legal counsel.⁵¹

48 See K.M.G. , 219 A.3d at 669.

49 Although the rule is targeted at representation of two different clients, rendering its relevance to a GAL/Section 2313(a) conflict unclear, I assume—like the court below and others—that Rule 1.7 applies where a child's best interests (the GAL's concern) conflict with the child's legal interests (legal counsel's concern). See T.S. , 192 A.3d at 1098 n.6 (Donohue, J., concurring and dissenting); L.B.M. , 161 A.3d at 181 (plurality); id. at 187-88 (Baer, J., dissenting).

50 Brief for Juvenile Law Center, et al ., at 6 n.4.

51 Cf. L.B.M. , 161 A.3d at 181 n.15 (plurality) ("Justice Baer suggests that the dependency GAL, bound by Pa.R.P.C. 1.7, could continue to represent the child in the TPR hearing because the dependency GAL would be required to seek appointment of counsel should there be a conflict of interest. ... This essentially would make the GAL the arbiter of the child's right to counsel.").

Second, the Superior Court observed (correctly, as far as it goes) that any party may raise an alleged conflict before the orphans’ court or Superior Court.⁵² It is true that a parent whose rights are at stake may raise the conflict in the Superior Court, even without having preserved it in the orphans’ court. But courts (and children) should not be forced to rely upon (unreliable) parents or other third parties to ensure that counsel's performance is scrutinized against Section 2313(a) ’s child-focused mandate.

52 See K.M.G. , 219 A.3d at 669.

Third, the Superior Court opined that the "orphans’ court ... often decides this issue," ostensibly rendering sua sponte appellate review unnecessary.⁵³ But even if a child's right to counsel often is protected, the need remains to ensure the protection of that right in every case. Moreover, without an orphans’ court record, appellate review, whether sua sponte or at a party's request, is a guessing game; entirely too much is left to chance. Conversely, sua sponte appellate review and, where necessary, remand to establish a record regarding counsel's efforts to discern child's wishes and the presence or absence of conflict provides an alternative means of ensuring that cross-appointed counsel and the orphan's court fulfill Section 2313(a) ’s mandate.

53 Id .

"Effective representation of a child requires, at a bare minimum, attempting to ascertain the client's position and advocating in a manner designed to effectuate that position."⁵⁴ When there is no evidence in the record to indicate that a child's counsel either "ascertain[ed] the client's position" or "advocat[ed] in a manner designed to effectuate that position,"⁵⁵ an appellate court cannot conclude that the orphans’ court provided the child with counsel under Section 2313(a). Because a violation of Section 2313(a) is structural error, and is not subject to harmless error review, when faced with such an evidentiary void, the Superior Court should vacate the order terminating parental rights and remand the case to the orphans’ court.

54 In re K.R. , 200 A.3d 969, 986 (Pa. Super. 2018).

55 Id .

Under the Majority's approach, so long as a GAL is cross-appointed as legal counsel for the child and the court once asserts an absence of conflict, counsel can: (1) fail to interview the child; and (2) fail to meet with the child; and (3) fail to discern or express the child's wishes to the orphans’ court; and (4) fail to confirm that his understanding of the child's wishes is up to date; and (5) tacitly invite the court to infer without a sound basis of record that he has confirmed that the child's legal interests and preferences are consistent with counsel's assessment of the child's best interests. If the court terminates the parent's rights having heard nothing to establish the child's wishes or to allow factoring them into the court's decision, and if neither parent nor any other interested party raises a conflict before the appellate court, the Superior Court must (under this approach) affirm. For me, Section 2313(a) evinces the legislature's clear intent that a child's right to legal counsel would never be so fragile, especially inasmuch as the right to appeal is of constitutional provenance.⁵⁶

56 See PA. CONST. art. V § 9 ("There shall be a right of appeal in all cases ... from a court of record ... to an appellate court, the selection of such court to be as provided by law ....").

Even if the orphans’ court has at some point in advance of the TPR hearing discerned some basis for the conclusion that there is no conflict—or, as the Majority does here, relies (unreliably) upon GAL's service in the GAL's different role during the preceding dependency case⁵⁷ —that determination may occur weeks or even many months before the TPR hearing. Such a preliminary determination does not alone establish that the child's interests coincide as the time of the hearing approaches. It may take time for the child to come to trust the attorney and speak openly about his or her preferred outcome. Or the child, for whatever reason—perhaps continuing visits with the parent further have informed the child's views—may change his or her mind between earlier consultations and the hearing.⁵⁸ Thus, as the hearing becomes imminent or at the hearing itself, cross-appointed counsel should confirm on the record, by means appropriate to the case and the child's wishes, that no such conflict has developed. This is required to ensure: (a) that Section 2313(a) is satisfied; and (b) that the orphans’ court pays due consideration to the bond between parent and child and child's preferred outcome; and (c) that those considerations are integrated into the court's analysis of Section 2511(b) ; and (d) that the record is sufficient to enable the appellate court meaningfully to review the orphans’ court's decision.⁵⁹

57 See Maj. Op. at –––– ("While the [Section 2313(a) appointment] order did not provide additional details regarding the court's finding of no conflict, we observe that ... Hollenbeck had served as the Children's GAL [since 2016].]"); cf. T.S. , 192 A.3d at 1100 (Wecht, J., dissenting) ("When the lawyer acts in the dual capacity of GAL in dependency proceedings and legal counsel in the TPR hearing, role confusion is likely, particularly in circumstances where the child may direct counsel in the TPR hearing, but may not direct the GAL in the dependency proceeding.").

58 Cf. In re D.M.C. , 192 A.3d 1207, 1211 (Pa. Super. 2018) ("While the record shows [the attorney] ... briefly conferred with D.M.C., then just shy of 13 years old, as to his preferred outcome for permanency, we cannot discern from the record whether D.M.C. fully understood during the limited telephone call with [the] Attorney ... that his adoption would mean ... that his relationship with Mother would be legally and permanently severed.").

59 Section 2313(a) is not the only Adoption Act provision that underscores the need to discern a child's preferences and factor those preferences, as well as considerations that may reveal a child's preferences such as the emotional connection between parent and child, into the determination of whether separation benefits the "developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S. § 2511(b) ; see In re J.R.R. , 229 A.3d 8, 14 (Pa. Super. 2020) (remanding for consideration of the "Child's preferred outcome in this termination matter and the effect that termination would have on the Child"); see also In re E.M. , 533 Pa. 115, 620 A.2d 481, 485 (1993) ("To render a decision that termination serves the needs and welfare of the child without consideration of emotional bonds, in a case such as this where a bond, to some extent at least, obviously exists and where the expert witness for the party seeking termination indicates that the factor has not been adequately studied, is not proper."). Justice Dougherty suggests that, because our courts have recognized that a child's "preferences and conflicting loyalties" do not always serve their "needs and welfare," In re T.S.M. , 620 Pa. 602, 71 A.3d 251, 267 (2013), and because we have folded questions of a child's emotional bond with a parent into the assessment of a child's "needs and welfare," the child's preferences and emotional bond with the parent somehow must be considered as discrete—if not antagonistic—factors. Conc. Op. at –––– (Dougherty, J., concurring). I disagree that the lines are so clear, and would describe this as one of the many case-specific considerations in TPR proceedings that militate in favor of more rigorous, rather than more deferential, appellate review.

To be sure, counsel's timely assurances that no conflict is present must weigh heavily upon the trial court's evaluation of the evidence, and this evaluation is entitled to considerable deference.⁶⁰ But it is one thing to review an orphans’ court's conclusion for an abuse of discretion and to determine whether there is evidence of record to sustain the orphans’ court's conclusion regarding cross-appointed counsel's absence of conflict. It is something else entirely to accept the court's reliance upon counsel's conclusory assurances.

60 Although we have not considered what standard of review applies when appellate courts assess sua sponte the adequacy of legal counsel's representation under Section 2313(a), the appropriate standard would appear to be to review the orphans’ court's consideration of adequacy (if any) for an abuse of discretion, a standard we apply in most facets of TPR proceedings. See T.S. , 192 A.3d at 1087 ("When reviewing an order granting or denying termination of parental rights, we accept factual findings and credibility determinations supported by the record, and we assess whether the common pleas court abused its discretion or committed an error of law."); cf . In re S.P. , 616 Pa. 309, 47 A.3d 817, 826-27 (2012) ("[E]ven where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the [orphans’] court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record ....").

By positing circumstances in which legal counsel's vigorous advocacy for a child's legal interests involve not divulging the child's preferences, the Majority biases its analysis against sua sponte review of cross-appointed counsel's potential conflict or categorical failure to advocate for child's legal interests. The Majority does this by simply knocking down the straw man of a "bright line" rule requiring the child's preference in this narrow sense be entered of record in all cases.⁶¹ The Majority reserves sua sponte review for "bright-line" questions such as whether counsel was appointed in the first place. But on the Majority's account, whether a child's legal interests have been represented by cross-appointed legal counsel is too messy because it may not require—or may require more than—entry of the child's express preference regarding termination upon the record. If the question involved merely ascertaining the entry of the child's preference vis-à-vis termination upon the record, the inquiry would be as binary as whether legal counsel was appointed as such, and that would render it equally reviewable on the Majority's own account. According to the Majority, appellate courts should address it only when it is duly raised by a third party, but never on the appellate court's own initiative.

61 See Maj. Op. at –––– ("We ... reject the argument that appellate courts should review sua sponte whether [cross-appointed counsel] sufficiently advocated for the child's interests by requiring the child's preferred outcome to be placed on the record."). Dissenting in T.S. , I also acknowledged that, under certain circumstances—there, where a child was too young to form a reliable preference as to outcome—legal counsel "must make use of whatever means are available and appropriate to make that assessment, including, but not limited to, observation of the child with the parents and foster parents and interviews of those involved in the child's case." T.S. , 192 A.3d at 1101 (Wecht, J., dissenting).

There is a more straightforward answer that best assures children receive the full benefit of the legal counsel that the legislature expressly intended. I agree with the Majority that the Court should be "wary to create a bright-line rule requiring counsel and the courts to place the children's preferred outcome on the record."⁶² But no such universal rule is required to protect a child's right to counsel. Much as I posited in T.S. as to a child too young—or otherwise incapable—to formulate and articulate an outcome preference, counsel nonetheless can (and must) detail his or her efforts to glean the child's wishes, whether and to what extent those efforts succeeded, and that they confirmed no conflict,⁶³ thus making a record that enables appellate review. Putting the child's express, verbalized preference as such on the record is not the only way to establish that legal counsel has zealously represented the child's legal interests.⁶⁴ And it is zealous representation that the law requires.

62 Maj. Op. at ––––.

63 Justice Dougherty suggests that what he describes as "assimilating consideration of the child's preferences within the grounds for involuntary termination ... would reassign the burden for proving the grounds [for termination] are met from the party seeking termination ... to a non-moving party whose duty is solely to the child." Conc. Op. at –––– (Dougherty, J., concurring). Not only does this appear to be a non sequitur , it also reinforces how important it is to confirm that cross-appointed counsel's conduct taken as a whole paid due regard to the necessary unity of purpose that defines any counsel's duty to a client. Of course legal counsel's "duty is solely to the child." Id . at ––––. That is precisely why I would not leave the risk of conflict unexamined upon review when no other party sees any personal advantage in pressing the subject for his or her own purposes.

64 Amici curiae recognize that this context-sensitive approach is suitable to determine whether legal counsel understood and fulfilled its obligations without conflict. See Brief for Juvenile Law Center, et al. , at 11-12 n.6 ("Sua sponte review should ordinarily be very brief. It is only when the record .., lacks any evidence that counsel has determined and articulated the child's desired outcome, that sua sponte review becomes necessary. ... The court can establish limited inquiries and findings that demonstrate that a child has the benefit of counsel, which this Court has defined as ‘a lawyer who represents the child's legal interests, and who is directed by child.’ L.B.M. , 161 A.3d at 180. These inquiries can establish whether the attorney ‘attempt[ed] to ascertain the client's position and advocate[d] in a manner designed to effectuate that position. T.M.L.M. , 184 A.3d at 590."). Mother, too, disclaims an overly intrusive scope of sua sponte review. See Brief for Mother at 30 ("Mother does not assert that sua sponte review of, for example, counsel's choice of litigation strategy is required or appropriate."). In this regard, Justice Dougherty acknowledges that "where a child's attorney adds little evidence to the record, it may not be possible to discern ... how the attorney advanced the child's legal interests." Conc. Op. at ––––. He also puts that rabbit in the hat by observing that "[a]n evidentiary hearing regarding the termination of a parent's rights will generally not adequately reflect how any party's counsel ascertained a client's position," id. at ––––, disregarding the fact that attorneys and lower tribunals will perfect the record in whatever way we prescribe. We accept questions for review not to describe what the status quo is, but what it should be. And rather than suggest that the solution lies in counsel making a record, by whatever means suit the circumstance, Justice Dougherty would dispense with any such requirement so that establishing an evidentiary foundation for appellate review does not "controvert the focus of the proceeding." Conc. Op. at –––– (Dougherty, J., concurring). But requiring that counsel and the court provide a foundation for meaningful appellate review does not "controvert the focus of the proceeding"—it vouchsafes it.

Circling back to the L.B.M. formulation, the Majority also suggests that to require a more probing review would be tantamount to adding language to Section 2313(a). The Majority asserts that "Subsection 2313(a) simply does not require counsel to place the child's legal interests on the record," adding that "the statutory directive is to the court, not counsel."⁶⁵ "It is inappropriate," the Majority observes, to "engage in the judicial creation of what amounts to new statutory duties where we have repeatedly counseled" that the Court "must not ‘add, by interpretation, a requirement not included by the General Assembly.’ "⁶⁶ On this scaffolding, the Majority then cobbles together the conclusion that an appellate court cannot sua sponte consider whether any evidence at all demonstrates legal counsel's efforts to discern child's preference, or even that cross-appointed counsel appreciated the distinction between advocating for a child's best or legal interests—whether, in short, child received legal representation in more than name only. It is not to whom the directive applies that is important here—it is what the statute reveals about how the legislature intended to protect children.

65 Maj. Op. at ––––.

66 Id. (quoting Kegerise v. Delgrande , 646 Pa. 180, 183 A.3d 997, 1005 (2018) ).

Insofar as conflicted counsel is indistinguishable from no counsel at all, whether a child in a TPR proceeding had the benefit of unconflicted legal counsel becomes a central question in assessing the fulfillment of the General Assembly's intent. To provide an effective mechanism for reviewing that question on appeal even where no third party raises it does not superimpose some novel duty upon the indisputable right to counsel that Section 2313(a) creates. Rather, it gives meaning and effect to that right.

I recognize that courts in all contexts must depend upon the good faith and integrity of counsel. But where the potential injury is so grave and so thoroughly irreversible, and where the child whose best interests are paramount is so vulnerable, courts should do everything in their power to maximize the likelihood of a fair and just result. The legislature has determined that this requires the participation of zealous legal counsel dedicated to gleaning and giving voice to a child's own ideas and wishes. Implicit as a matter of practical necessity is appellate review of counsel's satisfaction of the statutory mandate. Trust, but verify.⁶⁷

67 Although popularized by President Ronald Reagan, this phrase derives from a Russian proverb transliterated into English from Cyrillic as "doveryai no proveryai." See Barton Swaim, ‘Trust, but verify’: An untrustworthy political phrase , WASH. POST, Mar. 11, 2016, available at washingtonpost.com/opinions/trust-but-verify-an-untrustworthypolitical-phrase/2016/03/11/da32fb08-db3b-11e5-891a-4ed04f4213e8_story.html.

My approach would not be more burdensome for the Superior Court in any given case than the Majority's approach. Already, the Superior Court must determine whether the orphans’ court appointed counsel for the child.⁶⁸ The Superior Court also must review the conflict issue when it is raised.⁶⁹ It is unclear how the review required when the issue is raised by a third party differs from when the court raises it sua sponte . To be sure, it is always preferable to have party advocacy, but the value of advocacy runs in inverse proportion to the degree to which the inquiry involves the sufficiency of the record on a given point, especially where the appellate court asks not whether it would have reached the same conclusion, but rather whether the orphans’ court had a sufficient evidentiary basis for reaching its own.⁷⁰

68 See K.J.H. , 180 A.3d 411.

69 See, e.g. , K.R. , 200 A.3d 969.

70 Nor is it necessary to proceed without advocacy. Here, the Superior Court received supplemental briefing before rendering its decision. See K.M.G. , 219 A.3d at 666-67. That being said, the Superior Court in at least four cases has reviewed sua sponte whether a single individual could serve as GAL and counsel for a child without the benefit of supplemental briefing, and the sky has yet to fall. See In re: Adoption of H.A.H. , 2018 WL 4957398 (Pa. Super. Oct. 15, 2018) (unpublished); D.M.C. , 192 A.3d 1207 ; M.D.Q. , 192 A.3d 1201 (Pa. Super. 2018) ; T.M.L.M. , 184 A.3d 585. Finally, as Mother herself observes, were this Court to provide for meaningful sua sponte review as to whether Child had the benefit of unconflicted legal counsel, "future litigants would be prepared to address the issue in every termination appeal."

I would find that the Superior Court erred in this case. First, the orphans’ court did not appoint separate attorneys to serve as GAL and counsel for Children. Second, at least three of the Children appear to have been old enough to express a preference as to the outcome of the proceedings. At the time of the TPR hearing, A.M.G. was eight years old, S.A.G. was six, K.M.G. five, and J.C.C. two.⁷¹ Naturally, factors other than age may bear upon whether a child can express an informed preference, but other evidence in this case also indicated that these children were capable of voicing their legal interests. Six of the witnesses at the TPR hearing testified that Children had a bond with Mother, and the orphans’ court credited this testimony.⁷² Moreover, nothing in the record at the time of the TPR proceeding suggests that Hollenbeck had more recently investigated or disclosed Children's legal interests than at some point before the January 8, 2018 cross-appointment. In his closing presentation, Hollenbeck asserted only that he believed it was in Children's "best interest to grant [CYS’] Petition."⁷³

71 We observed in T.S. that " ‘children as young as five or six years of age’ " may be able to express a preferred outcome in a TPR proceeding. See 192 A.3d at 1089 n.17 ; accord K.R. , 200 A.3d at 985 ; M.D.Q. , 192 A.3d at 1205 ; T.M.L.M. , 184 A.3d at 590. On the other hand, this Court has held that children who are two or three years old could "not have formed a subjective, articulable preference." T.S. , 192 A.3d at 1089. Based upon their age, the three older children could have expressed a preference. Even assuming J.C.C. was too young to express a legal interest, several witnesses indicated that Children wished to live together, and the court credited this testimony. See N.T. at 117, 156, 208.

72 See N.T. at 80, 107, 117, 122, 156, 160, 179-80, 208; Orphans’ Court Op. at 5-6.

73 N.T. at 203 (emphasis added).

Given the absence of any evidence, let alone any contemporaneous evidence, regarding Hollenbeck's efforts to identify Children's preferences and at least factor them into his assurance to the orphans’ court that there was no risk of conflict between any of Children's best and legal interests, I would vacate all four orders. Even evaluating the orphans’ court's decision most deferentially, and even assuming the very best of Hollenbeck, the appellate court simply cannot know upon what basis, if any, the orphan's court concluded that the legal interests of A.M.G., S.A.G., K.M.G., and J.C.C. had been represented, let alone zealously so, rendering meaningful appellate review impossible.

A final note. Although my analysis adheres to this Court's precedent in T.S. , today's case only reinforces my disagreement with that decision.⁷⁴ Section 2313(a) evinces the General Assembly's intent that separate counsel be appointed for a child in each contested TPR case, regardless of the child's age, ability to verbalize, or the possible convergence of best and legal interests. Had a majority of the Court shared my views, adhered faithfully to L.B.M. in all respects, and simply followed the General Assembly's instructions, we would not now find ourselves hopelessly enmired in this morass, which this Court's own equivocations have created for us and for the lower courts. Counsel appointed with a unitary mandate proves a great deal more about his or her intention by showing up than does a cross-appointed attorney, whose mere presence may mask an underlying misunderstanding about, or conflict between, counsel's competing obligations.

74 See L.B.M. , 161 A.3d at 180-82 (plurality) (opining that Section 2313(a) entirely precludes cross-appointments of GALs to serve as legal counsel); accord T.S. , 192 A.3d at 1099-1105 (Wecht, J., dissenting) (same).

As the Majority suggests, to impose a universal, per se rule that counsel must affirmatively and expressly enter a child's preference into the record might—at least at the margins—pose problems to the very attorney-client-type relationship we have indicated Section 2313(a) aims to provide. But the Majority's analysis in this case does not rely upon matters so fine-grained. Whether the orphans’ court issues an order confirming that there is no conflict a week before the TPR hearing or a year before it, the result is the same: Even if the evidence indicates a clear conflict—let alone where it supports no conclusion at all—relief on appeal will be available only if the conflict question is raised by someone other than the child on appeal. I find untenable the arbitrariness that will inevitably result from this new rule.

The Superior Court aptly has observed that the orphans’ court's termination order is "a death sentence to the familial relationship."⁷⁵ Unwieldy though it may sometimes be, sua sponte review to assess the prospect of unrecognized or unacknowledged conflict, rather than the mere fact of a Section 2313(a) cross-appointment, is the only way to ensure that the General Assembly's directive in Section 2313(a) is followed.

75 In re Lilley , 719 A.2d 327, 329 (Pa. Super. 1998).

Remanding for a more careful assessment might delay this case's and others’ resolutions. But where counsel and the orphans’ court have failed to make a record, concerns for delay cannot prevail over ensuring that children are not separated permanently from their parents without resort to the protections our General Assembly provided. Moreover, were this Court to proceed as I suggest, attorneys and orphans’ courts would be on notice that such delay may be avoided simply by making a record sufficient to enable review. Better that we encourage that result than insist upon haste at the risk of mistake. We are dealing with something fundamental: the permanent severance of the relationship between a parent and a child.

The restrictions that the Majority imposes upon appellate review do not satisfy the mandate of Section 2313(a). The question of whether a child in a TPR proceeding has been afforded legal counsel who is unconflicted is too important to be judicially nullified by this Court or any other court.

Justice Donohue joins this concurring and dissenting opinion.