J-S03019-25
2025 PA Super 64
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF OF A. C. M.., A MINOR : PENNSYLVANIA : : APPEAL OF: D' S. K.- K. C., MOTHER : : : : : No. 1120 WDA 2024
Appeal from the Decree Entered August 16, 2024 In the Court of Common Pleas of Erie County Orphans' Court at No(s): No 47 in Adoption 2024
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF OF: P. K.-L. M.,A MINOR : PENNSYLVANIA : : APPEAL OF: D' S. K.-K. C., MOTHER : : : : : No. 1121 WDA 2024
Appeal from the Decree Entered August 16, 2024 In the Court of Common Pleas of Erie County Orphans' Court at No(s): No. 47A in Adoption 2024
BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.
OPINION BY SULLIVAN, J.: FILED: MARCH 18, 2025
D’ S. K.-K. C. (“Mother”) appeals from the decree terminating her
parental rights to her son, A.C.M., born in November 2016, and her daughter,
P.K.H. (collectively “the Children”), born in December 2021.1 After careful
review, we are constrained to vacate and remand with instructions.
____________________________________________
1By separate decree, the trial court terminated the parental rights of the Children’s father. Father did not appeal. J-S03019-25
The Erie County Office of Children and Youth (“the Agency”) has been
involved with Mother since approximately 2007. In 2009, the court
involuntarily terminated Mother’s parental rights to her three oldest children.
See Orphans’ Court Opinion, 10/8/24, at 2. The court involuntarily terminated
her parental rights to a fourth child in 2017. See id. By court order, Mother
is not permitted to have contact with a fifth child. See id.
In July 2022, the Agency obtained emergency protective custody of the
Children after it received several reports regarding Mother’s parenting
deficiencies, including leaving less than one-year-old P.K.H. alone in a hot car
for approximately 10-12 minutes and driving down a busy street with the
passenger door (next to where the children were sitting) open. See id. at 4.
Mother has an extensive history of domestic violence with the Children’s
Father, untreated mental health and drug/alcohol dependency issues,
criminal activity, chronic issues with finding appropriate housing, and lack of
cooperation with service providers. See id. at 4-5.
The court adjudicated the Children dependent in August 2022. See id.
at 1. The court found aggravated circumstances. The goal for the Children
was concurrently listed as return home and adoption. In explaining the
circumstances which led to the termination of Mother’s parental rights to the
Children, the Orphans’ Court stated:
The circumstances creating the present dependency adjudication were a continuation of the parental problems addressed in [Mother’s] prior dependency proceedings. [Mother] has significant mental health issues that impede her ability to parent.
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[Mother] lacks insight into the deficits in her parenting skills. She blames external factors for her situation. She has proven consistently unable to provide for her basic needs[,] let alone the basic needs of the Children. [Mother] struggles with maintaining housing.
Given [Mother’s] history, the Agency could have justified [“]keeping her on a short leash[”] for a limited period of time for reunification purposes before requesting a goal change to adoption.[2] Instead, to the credit of the Agency’s caseworker, a concerted and lengthy effort was made to surround [Mother] with a host of services to enable her to alleviate the conditions which led to the dependency adjudication. Agency personnel intended to increase [Mother’s] visitation if she progressed. To [Mother’s] credit, she made an effort and some limited progress. However, after the case was approaching two years in duration, [Mother] had not and likely will never alleviate the presenting problems. At that time, [Mother] was living in a U[-H]aul trailer while the Children were safe and blossoming in [their] foster home.
The Children, particularly A.C.M., are genuinely fearful of living with [M]other. [Mother’s] behavior toward them is often aggressive and inappropriate. [Mother] has made numerous promises to them, only to deeply disappoint the Children when the promises are unfulfilled. A.C.M. has repeatedly expressed his desire not to return to [M]other[;] he is happy living with [his foster family].
The Children have formed a meaningful bond with the [foster family]. By contrast, there is little bond with their mother. The detailed testimony of Dr. [Peter] von Korff provided a comprehensive review of [Mother’s] mental health needs, antisocial behaviors, lack of empathy or remorse, high risk of impulsive or abusive behavior of the Children, and [an] insecure attachment style, each of which poses a high risk that [Mother] is unable to safely parent the Children. The cumulative effect of these issues raises grave concerns about [Mother’s] ability to ever parent the Children. It was Dr. von Korff’s expert opinion that it was in the Children’s best interests that [Mother’s] parental rights be terminated.
2 The court changed the goal to adoption in April 2024.
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Id. at 2-3 (footnote added).
In August 2024, the Orphans’ Court entered decrees involuntarily
terminating Mother’s parental rights to the Children pursuant to subsections
2511(a)(1), (2), (5), (8) and (b) of the Adoption Act.3 The instant appeal
followed.4
On appeal, Mother raises the following issues:
1. Whether the [Orphans’] Court committed an abuse of discretion and/or error of law when it concluded that the Agency established, by clear and convincing evidence, the grounds for involuntary termination of parental rights of Mother under 23 Pa.C.S.A. § 2511(a)(1)?
2. Whether the [Orphans’] Court committed an abuse of discretion and/or error of law when it concluded that the Agency established, by clear and convincing evidence, the grounds for involuntary termination of parental rights of Mother under 23 Pa.C.S.A. § 2511(a)(2)?
3. Whether the [Orphans’] Court committed an abuse of discretion and/or error of law when it concluded that the Agency established, by clear and convincing evidence, the grounds for involuntary termination of parental rights of Mother under 23 Pa.C.S.A. § 2511(a)(5)?
4. Whether the [Orphans’] Court committed an abuse of discretion and/or error of law when it concluded that the Agency established, by clear and convincing evidence, the grounds for involuntary termination of parental rights of Mother under 23 Pa.C.S.A. § 2511(a)(8)(a) and (a)(8)(b)?
3 23 Pa.C.S.A. §§ 2101-2938.
4 Mother and the Orphans’ Court complied with Pa.R.A.P. 1925.
-4- J-S03019-25
Mother’s Brief at 4 (unnecessary capitalization omitted, citation format
regularized).
Prior to addressing Mother's claims, we are required to address, sua
sponte, Children's right to counsel in the underlying, contested termination of
parental rights proceedings. The Adoption Act states:
(a) Child. — The court shall appoint counsel to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents. The court may appoint counsel or a guardian ad litem to represent any child who has not reached the age of 18 years and is subject to any other proceeding under this part whenever it is in the best interests of the child. No attorney or law firm shall represent both the child and the adopting parent or parents.
23 Pa.C.S.A. § 2313(a) (italics added). Further, “a single attorney cannot
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J-S03019-25
2025 PA Super 64
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF OF A. C. M.., A MINOR : PENNSYLVANIA : : APPEAL OF: D' S. K.- K. C., MOTHER : : : : : No. 1120 WDA 2024
Appeal from the Decree Entered August 16, 2024 In the Court of Common Pleas of Erie County Orphans' Court at No(s): No 47 in Adoption 2024
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF OF: P. K.-L. M.,A MINOR : PENNSYLVANIA : : APPEAL OF: D' S. K.-K. C., MOTHER : : : : : No. 1121 WDA 2024
Appeal from the Decree Entered August 16, 2024 In the Court of Common Pleas of Erie County Orphans' Court at No(s): No. 47A in Adoption 2024
BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.
OPINION BY SULLIVAN, J.: FILED: MARCH 18, 2025
D’ S. K.-K. C. (“Mother”) appeals from the decree terminating her
parental rights to her son, A.C.M., born in November 2016, and her daughter,
P.K.H. (collectively “the Children”), born in December 2021.1 After careful
review, we are constrained to vacate and remand with instructions.
____________________________________________
1By separate decree, the trial court terminated the parental rights of the Children’s father. Father did not appeal. J-S03019-25
The Erie County Office of Children and Youth (“the Agency”) has been
involved with Mother since approximately 2007. In 2009, the court
involuntarily terminated Mother’s parental rights to her three oldest children.
See Orphans’ Court Opinion, 10/8/24, at 2. The court involuntarily terminated
her parental rights to a fourth child in 2017. See id. By court order, Mother
is not permitted to have contact with a fifth child. See id.
In July 2022, the Agency obtained emergency protective custody of the
Children after it received several reports regarding Mother’s parenting
deficiencies, including leaving less than one-year-old P.K.H. alone in a hot car
for approximately 10-12 minutes and driving down a busy street with the
passenger door (next to where the children were sitting) open. See id. at 4.
Mother has an extensive history of domestic violence with the Children’s
Father, untreated mental health and drug/alcohol dependency issues,
criminal activity, chronic issues with finding appropriate housing, and lack of
cooperation with service providers. See id. at 4-5.
The court adjudicated the Children dependent in August 2022. See id.
at 1. The court found aggravated circumstances. The goal for the Children
was concurrently listed as return home and adoption. In explaining the
circumstances which led to the termination of Mother’s parental rights to the
Children, the Orphans’ Court stated:
The circumstances creating the present dependency adjudication were a continuation of the parental problems addressed in [Mother’s] prior dependency proceedings. [Mother] has significant mental health issues that impede her ability to parent.
-2- J-S03019-25
[Mother] lacks insight into the deficits in her parenting skills. She blames external factors for her situation. She has proven consistently unable to provide for her basic needs[,] let alone the basic needs of the Children. [Mother] struggles with maintaining housing.
Given [Mother’s] history, the Agency could have justified [“]keeping her on a short leash[”] for a limited period of time for reunification purposes before requesting a goal change to adoption.[2] Instead, to the credit of the Agency’s caseworker, a concerted and lengthy effort was made to surround [Mother] with a host of services to enable her to alleviate the conditions which led to the dependency adjudication. Agency personnel intended to increase [Mother’s] visitation if she progressed. To [Mother’s] credit, she made an effort and some limited progress. However, after the case was approaching two years in duration, [Mother] had not and likely will never alleviate the presenting problems. At that time, [Mother] was living in a U[-H]aul trailer while the Children were safe and blossoming in [their] foster home.
The Children, particularly A.C.M., are genuinely fearful of living with [M]other. [Mother’s] behavior toward them is often aggressive and inappropriate. [Mother] has made numerous promises to them, only to deeply disappoint the Children when the promises are unfulfilled. A.C.M. has repeatedly expressed his desire not to return to [M]other[;] he is happy living with [his foster family].
The Children have formed a meaningful bond with the [foster family]. By contrast, there is little bond with their mother. The detailed testimony of Dr. [Peter] von Korff provided a comprehensive review of [Mother’s] mental health needs, antisocial behaviors, lack of empathy or remorse, high risk of impulsive or abusive behavior of the Children, and [an] insecure attachment style, each of which poses a high risk that [Mother] is unable to safely parent the Children. The cumulative effect of these issues raises grave concerns about [Mother’s] ability to ever parent the Children. It was Dr. von Korff’s expert opinion that it was in the Children’s best interests that [Mother’s] parental rights be terminated.
2 The court changed the goal to adoption in April 2024.
-3- J-S03019-25
Id. at 2-3 (footnote added).
In August 2024, the Orphans’ Court entered decrees involuntarily
terminating Mother’s parental rights to the Children pursuant to subsections
2511(a)(1), (2), (5), (8) and (b) of the Adoption Act.3 The instant appeal
followed.4
On appeal, Mother raises the following issues:
1. Whether the [Orphans’] Court committed an abuse of discretion and/or error of law when it concluded that the Agency established, by clear and convincing evidence, the grounds for involuntary termination of parental rights of Mother under 23 Pa.C.S.A. § 2511(a)(1)?
2. Whether the [Orphans’] Court committed an abuse of discretion and/or error of law when it concluded that the Agency established, by clear and convincing evidence, the grounds for involuntary termination of parental rights of Mother under 23 Pa.C.S.A. § 2511(a)(2)?
3. Whether the [Orphans’] Court committed an abuse of discretion and/or error of law when it concluded that the Agency established, by clear and convincing evidence, the grounds for involuntary termination of parental rights of Mother under 23 Pa.C.S.A. § 2511(a)(5)?
4. Whether the [Orphans’] Court committed an abuse of discretion and/or error of law when it concluded that the Agency established, by clear and convincing evidence, the grounds for involuntary termination of parental rights of Mother under 23 Pa.C.S.A. § 2511(a)(8)(a) and (a)(8)(b)?
3 23 Pa.C.S.A. §§ 2101-2938.
4 Mother and the Orphans’ Court complied with Pa.R.A.P. 1925.
-4- J-S03019-25
Mother’s Brief at 4 (unnecessary capitalization omitted, citation format
regularized).
Prior to addressing Mother's claims, we are required to address, sua
sponte, Children's right to counsel in the underlying, contested termination of
parental rights proceedings. The Adoption Act states:
(a) Child. — The court shall appoint counsel to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents. The court may appoint counsel or a guardian ad litem to represent any child who has not reached the age of 18 years and is subject to any other proceeding under this part whenever it is in the best interests of the child. No attorney or law firm shall represent both the child and the adopting parent or parents.
23 Pa.C.S.A. § 2313(a) (italics added). Further, “a single attorney cannot
represent a child’s best interest and legal interest if those interests conflict.”
In re Adoption of K.M.G., 240 A.3d 1218, 1236 (Pa. 2020) (citation
omitted). Although “a child’s legal interests . . . are synonymous with the
child’s preferred outcome,” the Orphans’ Court must determine a child’s best
interests with guidance from “statutes and rules.” In re Adoption of L.B.M.,
161 A.3d 172, 174-75 (Pa. 2017); see also In re T.S., 192 A.3d 1080, 1082
n.2 (Pa. 2017) (recognizing counsel representing a child’s legal interests must
state the child’s wishes even if counsel does not agree with them, whereas
guardian ad litem counsel representing a child’s best interests must express
“what he or she believes is best for child's care, protection, safety, and
wholesome physical and mental development, regardless of whether the child
agrees”).
-5- J-S03019-25
The dependency Court appointed Christine Fuhrman Konzel, Esquire
(“Attorney Konzel”), guardian ad litem (“GAL”) for the Children. By separate
order, before the termination hearing, the Orphans’ Court appointed Attorney
Konzel as legal counsel for the Children, and assigned Attorney Konzel the
responsibility of identifying any conflict of interest in the joint representation:
“Should [Attorney Konzel] become aware of a conflict necessitating
appointment of a different[,] separate counsel to represent the [Children] in
the instant case, Attorney Konzel[] shall file the appropriate Motion for the
immediate appointment of a different[,] separate counsel for the [Children.]”
Order, 5/10/24, at 1.
In K.M.G., our Supreme Court clearly stated the primary role of trial
courts in determining whether children in contested termination of parental
rights proceedings require separate legal and best interests’ counsel. See
K.M.G., 240 A.3d at 1233-39; see also L.B.M., 161 A.3d at 183 (“In . . .
[termination of] [parental] [rights] cases[,] critical rights are at stake. . . .
[O]ur General Assembly has decided that counsel for the child is required
because of the primacy of children’s welfare, the fundamental nature of the
parent-child relationship[,] and the permanency of termination.”). To fulfill
its statutory duty under Section 23 Pa.C.S.A. 2313, 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
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that the orphans’ court indicated that the attorney could represent the child’s best interests and legal interests without conflict.
K.M.G., 240 A.3d at 1236 (emphases added). An Orphans’ Courts’ 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.
After K.M.G., this Court specifically rejected, as violative of K.M.G., an
order like the instant one that delegated to counsel the Orphans’ Court’s
responsibility to determine whether a conflict in dual representation existed.
See In re Adoption of A.G.R., 315 A.3d 51 (Pa. Super. 2024) (unpublished
memorandum, at *3).5 There, this Court stated:
the Orphans’ Court delegated its prescribed role of determining whether counsel could represent the dual interests of Children to [counsel]. . . . This is in direct contravention of Supreme Court precedent mandating that such a determination is to be made by the Orphans’ Court “in the first instance.”
Id. (citations and footnote omitted, emphasis added). The Court accordingly
vacated the Orphans’ Court’s decrees and remanded to the Orphans’ Court for
a hearing de novo and proceedings consistent with its decision. See id. at
*4.
A.G.R. correctly interprets the Supreme Court’s categorical rule stated
in K.M.G. Accordingly, we are compelled to vacate the Orphans’ Court’s
decrees and remand for the Orphans’ Court fulfill its section 2313(a) duty.
5 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decisions
of Superior Court filed after May 1, 2019, may be cited for persuasive value).
-7- J-S03019-25
The result we reach denies the Children the laudable goal of
permanence. See In re I.J., 972 A.2d 5, 11-12 (Pa. Super. 2009).
Additionally, assuring the absence of a conflict in joint representation is a
relatively simple, absolute requirement that has been in place for more than
four years following the Supreme Court’s K.M.G. decision. Since then, this
Court has either cautioned trial courts or remanded more than forty cases for
failure to comply with K.M.G.6 An Orphans’ Court can satisfy its statutory
duty with relative ease and greatly enhance the likelihood its ruling, which
affects the rights of parents and vulnerable children, will not be rendered
nugatory. For that matter, any counsel present in court is also well-positioned
to remind the court of its duty.7
We are constrained to vacate the termination decrees. On remand,
within thirty days of the date the record is remitted, we direct the Orphans’
Court to fulfill its section 2313(a) duty, as articulated in K.M.G., and
6 In fact, our review ascertained at least eight such cases in 2024 alone. See, e.g., A.G.R., supra; see also In re Adoption of K.L.B., 324 A.3d 1225 (Pa. Super. 2024) (unpublished memorandum); In re Adoption of L.P.D., 321 A.3d 971 (Pa. Super. 2024) (unpublished memorandum); Interest of M.J.P., 317 A.3d 627 (Pa. Super. 2024) (unpublished memorandum).
7 We note additionally the information regarding compliance with K.M.G. should be prominently featured in the trial court’s opinion and the briefs on appeal. This Court should not, as it had to in the instant matter, page through a lengthy record hoping to find evidence of compliance. See Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. Super. 1997) (“In a record containing thousands of pages, this court will not search every page to substantiate a party’s incomplete argument”).
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determine, following a hearing, whether Attorney Konzel may represent both
the best interests and legal interests of the Children without conflict. If the
Orphans’ Court determines no conflict exists between the Children’s dual
interests, then it shall re-enter the termination decrees as to Mother, which
will constitute a final, appealable decree. See Interest of A.J.R.O., 270 A.3d
563, 570 (Pa. Super. 2022). If the court determines there is a conflict
between the Children’s best interests and their legal interests, then the court
shall appoint separate legal counsel for the Children and conduct a new
termination hearing at which time Children’s legal counsel can advocate on
behalf of the Children’s legal interests. See K.M.G., 240 A.3d at 1235.
Decrees vacted. Cases remanded to Orphans’ Court for proceedings
consistent with this decision.8 Jurisdiction relinquished.
DATE: 3/18/2025
8 Because we are required to remand this matter, we do not reach Mother’s
issues on appeal.
-9-