J-A04045-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: ADOPTION OF: Z.M.F., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: J.A.F. JR., FATHER : : : : : No. 1552 MDA 2024
Appeal from the Decree Entered September 23, 2024 In the Court of Common Pleas of York County Orphans’ Court at No(s): 2024-0119a
BEFORE: LAZARUS, P.J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED APRIL 15, 2025
J.A.F., Jr. (“Father”) appeals from the decree involuntarily terminating
his parental rights to his daughter Z.M.F (born in September 2015) (“Child”).
Father’s counsel, Brandy Grace Hoke, Esq. (“Attorney Hoke”), has filed an
Anders brief and petitioned to withdraw from representation.1 Following our
review, we are constrained to deny Attorney Hoke’s petition to withdraw,
vacate the decree, and remand for further proceedings consistent with this
decision.
Based on our disposition, we need not set forth in full detail the factual
and procedural history of this case. In relevant part: Child was adjudicated
____________________________________________
1 See Anders v. California, 386 U.S. 738 (1967). In In re V.E., 611 A.2d 1267 (Pa. Super. 1992), this Court extended the Anders principles by applying the rationale underlying Anders to appeals involving the termination of parental rights. J-A04045-25
dependent in July 2022 because of inadequate healthcare. See Trial Ct. Op.,
10/30/24, at 2. In July 2024, York County Office of Children, Youth & Families
(“CYF”) petitioned for the involuntary termination of Father’s parental rights
to Z.M.F. pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). See
Pet., 7/12/14, at 4-7. The trial court later issued an order appointing T.L.
Kearney, Esq. (“Attorney Kearney”) as legal counsel for Child. See Order,
7/17/24.2 Attorney Kearney had represented Child as guardian ad litem in
the dependency action, and served in a dual role for the termination hearing.
See N.T., 9/23/24, at 8.3 At the hearing, the court inquired of Attorney
Kearney about whether Child’s best and legal interests conflicted, and
Attorney Kearney opined that they did not. The trial court, having delegated
to counsel its responsibility to make a conflict determination, made no
independent finding that there was no conflict before proceeding with the
termination hearing, at which Father represented himself pro se. See id. at
4, 8-9. The following is the extent of testimony regarding conflict analysis:
Court: Okay. I believe you were the guardian ad litem for Z.F. in the underlying dependency action?
Atty: That is correct.
2 Upon review of Judge’s Order appointing Attorney Kearney legal counsel, it
does not contain a conflict analysis.
3 The order appointing Attorney Kearney to represent Child as legal counsel
did not contain a finding that Attorney Kearney could represent Child in a dual role without conflict. See Order, 7/17/24.
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Court: Do you see any conflict of interest with your role as guardian ad litem in the dependency action versus your role as her legal counsel today?
Atty: I do not.
Court: Do her interests conflict in any way?
Atty: Not that I can tell, Your Honor. As far as I can tell, they do not conflict whatsoever.
Id. at 8-9. At the conclusion of the hearing, the court terminated Father’s
parental rights pursuant to subsections (a)(1), (5), (8), and (b). See id. at
117-27; see also Final Decree, 9/23/24.4 Father obtained counsel following
the hearing, who appealed on his behalf, and both Father and the trial court
complied with Pa.R.A.P. 1925.5
4Child’s mother consented to the termination of her parental rights. See Order, 9/13/24.
5 Father received notice of the first hearing date which informed him of his
right to counsel regardless of his ability to pay. See Affidavit of Service, 8/27/24, at 2. Father confirmed receipt of the notice. See N.T., 9/13/24, at 5. While Father had been unable to afford private counsel, he stated he did not want court-appointed counsel, and requested a continuance to obtain counsel, which the court granted, having found Father “does not want a [c]ourt-appointed attorney.” See id. at 5-9. 21-22. Father later appeared at the next hearing date and elected to proceed pro se without requesting another continuance or court-appointed counsel. See N.T., 9/23/24, at 3-4; see generally In re A.R., 125 A.3d 40 (Pa. Super. 2015) (holding that a trial court may hold a termination hearing, at which a parent proceeds pro se, if the parent had proper notice of the hearing and his right to counsel, and was provided clear instructions with how to obtain a lawyer if he could not afford one, yet he failed to do so).
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On appeal, Attorney Hoke has filed an Anders brief and petitioned to
withdraw from representation. Ordinarily, this Court cannot address the
issues presented in an appeal before passing on counsel’s request to
withdraw; however, we must sua sponte address Child’s right to counsel in
the contested termination of parental rights proceedings. See In re
Adoption of K.M.G., 240 A.3d 1218, 1236 (Pa. 2020) (holding that an
appellate court should sua sponte review whether the trial court (1) entered
an order appointing child counsel and (2) determined whether Child’s best
interests and legal interests did not conflict).6
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
6 We add that Attorney Hoke complied with Anders’s technical requirements
in that she has petitioned for leave to withdraw and stated in her petition that she made a conscientious examination of the record, interviewed Father, and concluded the appeal would be frivolous; she filed a brief referring to anything that might arguably support the appeal; and she furnished a copy of the brief to Father and advised him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court’s attention. See Pet. to Withdraw, 12/11/24, at ¶¶ 3, 6, 7, 9; Letter From Attorney Hoke to Father, 12/11/24; cf. In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (delineating Anders’s technical requirements). However, for the reasons stated above, we will not address the issues identified in Attorney Hoke’s Anders brief. See K.M.G., 240 A.3d at 1236; see also Matter of Adoption of S.T.K., 304 A.3d 775 (Pa. Super. 2023) (unpublished memorandum, at *3); 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).
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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 interests and legal interests if those interests conflict.”
In re Adoption of K.M.G., 240 A.3d at 1236 (citation omitted). Although “a
child’s legal interests . . .
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J-A04045-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: ADOPTION OF: Z.M.F., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: J.A.F. JR., FATHER : : : : : No. 1552 MDA 2024
Appeal from the Decree Entered September 23, 2024 In the Court of Common Pleas of York County Orphans’ Court at No(s): 2024-0119a
BEFORE: LAZARUS, P.J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED APRIL 15, 2025
J.A.F., Jr. (“Father”) appeals from the decree involuntarily terminating
his parental rights to his daughter Z.M.F (born in September 2015) (“Child”).
Father’s counsel, Brandy Grace Hoke, Esq. (“Attorney Hoke”), has filed an
Anders brief and petitioned to withdraw from representation.1 Following our
review, we are constrained to deny Attorney Hoke’s petition to withdraw,
vacate the decree, and remand for further proceedings consistent with this
decision.
Based on our disposition, we need not set forth in full detail the factual
and procedural history of this case. In relevant part: Child was adjudicated
____________________________________________
1 See Anders v. California, 386 U.S. 738 (1967). In In re V.E., 611 A.2d 1267 (Pa. Super. 1992), this Court extended the Anders principles by applying the rationale underlying Anders to appeals involving the termination of parental rights. J-A04045-25
dependent in July 2022 because of inadequate healthcare. See Trial Ct. Op.,
10/30/24, at 2. In July 2024, York County Office of Children, Youth & Families
(“CYF”) petitioned for the involuntary termination of Father’s parental rights
to Z.M.F. pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). See
Pet., 7/12/14, at 4-7. The trial court later issued an order appointing T.L.
Kearney, Esq. (“Attorney Kearney”) as legal counsel for Child. See Order,
7/17/24.2 Attorney Kearney had represented Child as guardian ad litem in
the dependency action, and served in a dual role for the termination hearing.
See N.T., 9/23/24, at 8.3 At the hearing, the court inquired of Attorney
Kearney about whether Child’s best and legal interests conflicted, and
Attorney Kearney opined that they did not. The trial court, having delegated
to counsel its responsibility to make a conflict determination, made no
independent finding that there was no conflict before proceeding with the
termination hearing, at which Father represented himself pro se. See id. at
4, 8-9. The following is the extent of testimony regarding conflict analysis:
Court: Okay. I believe you were the guardian ad litem for Z.F. in the underlying dependency action?
Atty: That is correct.
2 Upon review of Judge’s Order appointing Attorney Kearney legal counsel, it
does not contain a conflict analysis.
3 The order appointing Attorney Kearney to represent Child as legal counsel
did not contain a finding that Attorney Kearney could represent Child in a dual role without conflict. See Order, 7/17/24.
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Court: Do you see any conflict of interest with your role as guardian ad litem in the dependency action versus your role as her legal counsel today?
Atty: I do not.
Court: Do her interests conflict in any way?
Atty: Not that I can tell, Your Honor. As far as I can tell, they do not conflict whatsoever.
Id. at 8-9. At the conclusion of the hearing, the court terminated Father’s
parental rights pursuant to subsections (a)(1), (5), (8), and (b). See id. at
117-27; see also Final Decree, 9/23/24.4 Father obtained counsel following
the hearing, who appealed on his behalf, and both Father and the trial court
complied with Pa.R.A.P. 1925.5
4Child’s mother consented to the termination of her parental rights. See Order, 9/13/24.
5 Father received notice of the first hearing date which informed him of his
right to counsel regardless of his ability to pay. See Affidavit of Service, 8/27/24, at 2. Father confirmed receipt of the notice. See N.T., 9/13/24, at 5. While Father had been unable to afford private counsel, he stated he did not want court-appointed counsel, and requested a continuance to obtain counsel, which the court granted, having found Father “does not want a [c]ourt-appointed attorney.” See id. at 5-9. 21-22. Father later appeared at the next hearing date and elected to proceed pro se without requesting another continuance or court-appointed counsel. See N.T., 9/23/24, at 3-4; see generally In re A.R., 125 A.3d 40 (Pa. Super. 2015) (holding that a trial court may hold a termination hearing, at which a parent proceeds pro se, if the parent had proper notice of the hearing and his right to counsel, and was provided clear instructions with how to obtain a lawyer if he could not afford one, yet he failed to do so).
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On appeal, Attorney Hoke has filed an Anders brief and petitioned to
withdraw from representation. Ordinarily, this Court cannot address the
issues presented in an appeal before passing on counsel’s request to
withdraw; however, we must sua sponte address Child’s right to counsel in
the contested termination of parental rights proceedings. See In re
Adoption of K.M.G., 240 A.3d 1218, 1236 (Pa. 2020) (holding that an
appellate court should sua sponte review whether the trial court (1) entered
an order appointing child counsel and (2) determined whether Child’s best
interests and legal interests did not conflict).6
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
6 We add that Attorney Hoke complied with Anders’s technical requirements
in that she has petitioned for leave to withdraw and stated in her petition that she made a conscientious examination of the record, interviewed Father, and concluded the appeal would be frivolous; she filed a brief referring to anything that might arguably support the appeal; and she furnished a copy of the brief to Father and advised him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court’s attention. See Pet. to Withdraw, 12/11/24, at ¶¶ 3, 6, 7, 9; Letter From Attorney Hoke to Father, 12/11/24; cf. In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (delineating Anders’s technical requirements). However, for the reasons stated above, we will not address the issues identified in Attorney Hoke’s Anders brief. See K.M.G., 240 A.3d at 1236; see also Matter of Adoption of S.T.K., 304 A.3d 775 (Pa. Super. 2023) (unpublished memorandum, at *3); 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).
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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 interests and legal interests if those interests conflict.”
In re Adoption of K.M.G., 240 A.3d at 1236 (citation omitted). Although “a
child’s legal interests . . . are synonymous with the child’s preferred outcome,”
the trial 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 advocate for 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 the child’s care, protection, safety, and wholesome physical
and mental development[,] regardless of whether the child agrees”). See
also Matter of Adoption of A.C.M., 2025 PA Super 64, 2025 WL 840191 at
*2-*3 (Pa. Super. 2025).
Our review discloses that, per K.M.G., the trial court impermissibly
delegated to Attorney Kearney, G.A.L./legal counsel at the time of the
termination hearing, the court’s responsibility to determine whether a conflict
in dual representation existed. Cf. A.C.M., 2025 WL 840191 at *3 (noting
that pursuant to section 2313 and K.M.G., the court is required to make
determination of whether there is a conflict for purposes of dual representation
prior to appointment).
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Accordingly, we are constrained to vacate the termination decree and
remand for a prompt hearing, after remittal of the record, for the limited
purpose of the trial court fulfilling its section 2313(a) duty to make a finding
as to whether Attorney Kearney can represent the Child’s dual interests
without conflict. If the trial court determines there is a conflict, the trial court
shall appoint separate legal counsel and conduct a new termination hearing.
If, based on the facts presented, the trial court determines there is no conflict,
the court shall re-enter its termination decree, after which Father may again
appeal the decree.7
Decree vacated. Attorney Hoke’s application to withdraw from
representation is denied. Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 04/15/2025
7 We note Child has medical and cognitive disabilities, including Smith- Kingsmore syndrome, which is a chromosomal abnormality, and that she treats with several specialists, including, inter alia, a speech therapist. See N.T., 9/23/24, at 31-33, 42-44. In the event that the trial court finds Child’s preferred outcome is not ascertainable, the law does not require appointment of another lawyer to advance unknowable preferences. See Interest of Z.N.F., 212 A.3d 548, 550-51, 553-54 (Pa. Super. 2019).
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