In Re: Adpt. of: Z.N.L., Appeal of: J.M.H.

Opinion

J-S12029-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: ADOPTION OF: Z.N.L., A : IN THE SUPERIOR COURT MINOR : OF : PENNSYLVANIA : APPEAL OF: J.M.H., MOTHER : : : : : : No. 32 EDA 2026

Appeal from the Decree Entered December 2, 2025 In the Court of Common Pleas of Montgomery County Orphans' Court at No(s): 2025-A0088

BEFORE: McLAUGHLIN, J., SULLIVAN, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY SULLIVAN, J.: FILED MAY 1, 2026

J.M.H. (“Mother”) appeals from the December 2, 2025 decree

involuntarily terminating her parental rights to her son, Z.N.L. (“Child”), born

in March 2022.1 Following our review, we are constrained to vacate and

remand.

Given our disposition, we need not detail the full factual and procedural

history of this case. Briefly, Mother and Child came to the attention of the

Montgomery County Office of Children and Youth (“OCY”) in 2022, due to

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* Retired Senior Judge assigned to the Superior Court.

1 By separate decree entered on the same date, the Orphans’ Court involuntarily terminated the parental rights of Child’s father, N.P.L. (“Father”). Father had not appealed the Orphans’ Court decision or participated in this appeal. J-S12029-26

concerns related to homelessness and inadequate parenting. See N.T.,

12/2/25, at 69. At the time, Mother and Father were both minors. OCY

obtained custody of Mother in October 2022, and Child was placed with the

Father’s guardian under a safety plan. See id. OCY obtained custody of Child

in March 2023, and the juvenile court adjudicated Child dependent the same

month. See id. at 71-72; see also OCY Exhibit 3. OCY placed Child and

Mother together in a mother-baby program. See N.T., 12/2/25, at 72.

Child remained placed with Mother in the aforementioned program until

September 2023, when Mother absconded with him. See id. The following

month, Mother and Child were located and placed together in a temporary

foster home. See id. at 72-73. Mother again absconded two weeks later,

this time without Child. See id. at 73. Ultimately, Mother and Child were

placed together again in a foster home in April 2024. See id. at 73-74.

In August 2024, Mother transitioned to an independent living apartment

with Child, still under supervision of OCY, at which time the juvenile court

returned physical and legal custody of Child to Mother. See id. at 74; see

also OCY Exhibit 3. Thereafter, OCY developed concerns related to, inter alia,

Mother’s finances, Mother’s substance abuse, and domestic violence involving

Mother and her boyfriend. See id. at 75. Additionally, OCY received reports

alleging substance abuse by Mother and that Child was left home alone while

Mother went to work. See id. at 76, 79, 97. OCY ultimately obtained

emergency protective custody of Child in January 2025, and returned Child to

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foster care, where he remained at the time of the subject proceedings. See

id. at 98-100, 104-06.

The juvenile court recognized Child’s permanency goal as reunification

with a concurrent goal of adoption. See OCY Exhibit 3. In furtherance thereof,

OCY maintained a family service plan with objectives focused on, inter alia,

housing, substance abuse, and parenting. See OCY Exhibit 4; see also N.T.,

12/2/25, at 76. At a permanency review hearing in April 2024, which Mother

failed to attend, the court found Mother had not complied with the permanency

plan and made no progress toward alleviating the circumstances which

necessitated Child’s original placement. See OCY Exhibit 3. Thereafter, in

May 2025, at the request of Child’s guardian ad litem (“GAL”), the court

suspended communication between Child and Mother. See id.

On July 2, 2025, OCY filed a petition to involuntarily terminate Mother’s

parental rights to Child, then less than three-and-one-half years old, pursuant

to section 2511(a)(1), (2), (5), and (b).2 The Orphans’ Court appointed Janine

D’Aniello Martin, Esquire (“Attorney Martin”), of the Montgomery County

Advocacy Project (“MCAP”), Child’s GAL in the parallel dependency

proceedings, “as counsel to represent the legal interests” of Child on July 15,

2025. Order, 7/15/25. The order did not include any conflict determination.

See id.

2 See 23 Pa.C.S.A. § 2511(a)(1), (2), (5); id., § 2511(b).

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On December 2, 2025, the court conducted an evidentiary hearing, at

which time Child was then more than three and one-half years old. At the

beginning of the hearing, the following exchange occurred:

THE COURT: Before we get started -- I’m going to allow counsel to call witnesses on the permanency review – [Attorney] Martin, can you just address the legal interest, best interest of the child?

MS. MARTIN: Sure, Your Honor. It’s my position as legal interest and best interest counsel, I am in agreement with OCY’s position and granting the involuntary or voluntary [termination of parental rights] and continuing permanency with the foster family.

THE COURT: And you didn’t see there was any conflict between the best interest and legal interest?

MS. MARTIN: Not here, Your Honor.

*****

THE COURT: I’m just going to make a finding on the record that counsel for the minor child was appointed. Counsel understands the difference between legal counsel and best interest counsel. Counsel for the minor articulated that no conflict exists between representing the minor’s legal interest and best interest. Therefore, this [c]ourt finds no conflict exists between counsel’s representation of the legal interest and best interest of the minor child in the proceeding today.

N.T., 12/2/25, at 7-8.

Based on the foregoing, the court permitted Attorney Martin to

represent Child’s bests interests and legal interests at the subject hearing.

Mother was represented by counsel and participated via Zoom.3 OCY

3 Shortly after OCY began its case-in-chief with respect to the termination of

Mother’s parental rights, Mother ceased participation in the hearing. See N.T., (Footnote Continued Next Page)

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presented the testimony of its caseworkers, Anastasia Devlin Anderson and

Jamie Lowery, as well as numerous pieces of documentary evidence, including

Child’s dependency records. Mother did not testify or present any evidence.

By decree dated and entered on December 2, 2025, the Orphans’ Court

involuntarily terminated Mother’s parental rights to Child pursuant to section

2511(a)(1), (2), (5), and (b). On December 30, 2025, Mother timely filed a

notice of appeal, along with a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Thereafter, the Orphans’

Court filed a responsive Rule 1925(a) opinion, which referred to its reasoning

placed on the record at the conclusion of the evidentiary hearing.

On appeal, Mother raises the following issues for our review:

A. Did the [Orphans’ Court] commit an error of law and/or abuse its discretion when it held that [OCY] had proven by “clear and convincing evidence” that [Mother’s] parental rights should be terminated pursuant to 23 Pa.C.S.A. section 2511(a)(1), [(2), and (5)] where [Mother] had made, and was making, substantial progress on her Family Services Plan(s) goals as proven by the testimony and evidence produced at the hearing[?]

B. Did the [Orphans’ Court] commit an[] error of law and/or abuse its discretion when it terminated [Mother’s] parental rights pursuant to 23 Pa.C.S.A. [section] 2511(b) on the basis that the developmental, physical, emotional needs and welfare of [Child] was best served by termination of [M]other’s rights where she had made, and was making, substantial progress on the Family Services Plan(s)[?]

12/2/25, at 70. She did however testify with respect to the permanency review portion of the hearing which the Orphans’ Court heard first.

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C. Did the [Orphans’ Court] commit an[] error of law and/or abuse its discretion when it terminated [Mother’s] rights when family findings were not completed pursuant to 67 Pa.C.S.A. section 7503 and which affected necessary services being provided to Mother pursuant to 42 Pa.C.S.A. section 6351[?]

Mother’s Brief at 6-7.4

Before reaching the merits of Mother’s appeal, we first address whether

the Orphans’ Court’s appointment of Attorney Martin comported with 23

Pa.C.S.A. § 2313(a). See In re Adoption of K.M.G., 240 A.3d 1218, 1235-

36 (Pa. 2020) (holding 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 [23 Pa.C.S.A. § 2313(a),” and, further, if the Orphans’ Court

appoints one attorney 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” prior to

appointment).

In defining “child” the representation provision of the Adoption Act

provides the following guidance:

(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 ____________________________________________

4 OCY and MCAP, on behalf of Child, each filed briefs in this Court in support

of the decree involuntarily terminating Mother’s parental rights.

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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). “[A] child’s legal interests . . . are

synonymous with the child’s preferred outcome,” whereas a child’s best

interests encompass what is “best for child’s care, protection, safety, and

wholesome physical and mental development, regardless of whether the child

agrees.” Matter of Adoption of A.C.M., 333 A.3d 704, 708 (Pa. Super.

2025) (citations omitted). In order to “ensure that the child’s legal interests

are presented to the [trial] court,” this Court has explained that “a single

attorney cannot represent a child’s best interests and legal interests

if those interests conflict.” K.M.G., 240 A.3d at 1234, 1236 (emphasis

added).

Accordingly,

[t]o 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 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.

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A.C.M., 333 A.3d at 708.

This Court held an appointment order which “delegated to counsel the

Orphans’ Court’s responsibility to determine whether a conflict in dual

representation existed” violates K.M.G. Id. at 708 (citation and footnote

omitted).5 We thus vacated the termination decrees and remanded for the

court to follow the mandate of section 2313(a). Id. at 709.

Subsequently, in Interest of N.M.D., 2026 WL 92201 at *4 (Pa. Super.

filed January 13, 2026) (unpublished memorandum),6 this Court again

concluded an Orphans’ Court failed to make an independent conflict

determination, prior to appointment, inasmuch as it “accepted [the GAL’s]

statement that there was no conflict” and allowed the GAL to serve in a dual

role. Because the court did not follow the mandate of section 2313(a), we

vacated and remanded the court’s termination order. Id. at *4. We

explained, “The record . . . does not reflect that the [Orphans’ Court] itself

made a determination that there was no conflict between [the child’s] best

interests and legal interests before appointing [the GAL as the child’s] legal

5 The order in A.C.M. “assigned the GAL the responsibility of identifying any

conflict of interest in the joint representation,” and placed on the GAL the obligation to move for the appointment of a separate counsel if it became aware of a conflict. Id. at 708.

6 Pursuant to Pa.R.A.P. 126(b)(2), non-precedential decisions may be cited for

their persuasive value.

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counsel. Rather, the record reflects that the [Orphans’ Court] delegated this

responsibility to [the GAL].” Id.

Instantly, the Orphans’ Court failed to make the requisite conflict

determination prior to the appointment of Attorney Martin as legal counsel.

See A.C.M., 333 A.3d at 708 (citing K.M.G., 240 A.3d at 1236). The

appointment order was silent as to any conflict determination. See Order,

7/15/25. Furthermore, as in A.C.M. and N.M.D., the Orphans’ Court

improperly delegated its responsibility pursuant to section 2313(a). See

A.C.M., 333 A.3d at 708; N.M.D., 2026 WL 92201 at *4. At the

commencement of the evidentiary hearing, subsequent to appointment, the

Orphans’ Court simply relied on Attorney Martin’s representation there was no

conflict between Child’s best interests and legal interests. See N.T., 12/2/25,

at 7-8 (“[Attorney Martin] articulated that no conflict exists between

representing [Child’s] legal interest and best interest.”).

Child was more than three and one-half years old at the time of the

subject hearing. Although the record reflects Child’s involvement in speech

therapy, it also evinces that, by the time of the hearing, he talks “a lot.” N.T.,

12/2/25, at 105. We, therefore, decline to apply the presumption of In re

T.S., 192 A.3d 1080, 1092 (Pa. 2018), there is no conflict between a child’s

best interest and legal interest where a child is “very young and preverbal.”

Accordingly, we are constrained to vacate the Orphans’ Court’s decree and

remand for the Orphans’ Court to fulfill its section 2313(a) duty.

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We direct the Prothonotary of this Court to immediately remit the record

to the Orphans’ Court. Upon remittal of the record on remand, consistent with

section 2313(a), K.M.G., and A.C.M., the Orphans’ Court shall, within thirty

days, hold a hearing and make an independent determination as to whether

there is a conflict between Child’s best interests and legal interests that would

prevent Attorney Martin from representing both interests. See K.M.G., 240

A.3d at 1234-36; A.C.M., 333 A.3d at 709. If the Orphans’ Court determines

that no conflict exists between the Child’s best interests and legal interests,

then it shall re-enter its decree terminating Mother’s parental rights, which

will constitute a final, appealable order. See A.C.M., 333 A.3d at 709 (citing

In re A.J.R.O., 270 A.3d 563, 570 (Pa. Super. 2022)). If the Orphans’ Court

determines that there is a conflict between Child’s best interests and legal

interests, then the Orphans’ Court shall appoint separate legal counsel for

Child and conduct a new termination hearing. See id.; see also K.M.G., 240

A.3d at 1235.

Termination decree vacated. Remanded for further proceedings

consistent with this memorandum. Jurisdiction relinquished.

Date: 5/1/2026

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