In the Interest of: M.P., Appeal of: B.P.

• Court: Superior Court of Pennsylvania
• Decided: April 25, 2025
• Docket: 1194 WDA 2024
• Status: Unpublished

Opinion

J-S03036-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: M.P., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: B.W.P., FATHER : : : : : No. 1194 WDA 2024

Appeal from the Order Entered July 24, 2024 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000260-2021

IN THE INTEREST OF: K.P., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: B.W.P., FATHER : : : : : : No. 1195 WDA 2024

Appeal from the Order Entered July 24, 2024 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000261-2021

BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.

DISSENTING MEMORANDUM BY SULLIVAN, J.: FILED: APRIL 25, 2025

While I have no disagreement with the Majority’s analysis of the merits

of this matter, because I believe the Orphans’ Court failed to comply with the

Supreme Court’s directives as enunciated in In re Adoption of K.M.G., 240

A.3d 1218 (Pa. 2020), I am constrained to respectfully dissent.

In K.M.G., the Supreme Court held “where an [O]rphans’ [C]ourt has

appointed a GAL/Counsel to represent both the child’s best interests and legal J-S03036-25

interests, appellate courts should review sua sponte whether the [O]rphans’

[C]ourt made a determination that those interests did not conflict.” Id. at

1235. The Court gave clear parameters to the appellate courts of what they

may assess, indicating that we should narrowly determine “whether the

[O]rphans’ [C]ourt determined that the child’s best interests and legal

interests did not conflict,” not whether substantively “the GAL/Counsel had a

conflict in representing both a child’s legal interests and best interests.” Id.

at 1236. The Court indicated this review requires a “binary, record-based

determination[] . . . whether the [O]rphans’ [C]ourt determined that the

child’s best interest and legal interests did not conflict, [with the inquiry]

involv[ing] a yes or no answer that can be addressed by a review of the

[O]rphans’ [C]ourt order (or lack thereof) . . ..” Id. The Court also

noted this “limited review strikes an appropriate balance between protecting

children who cannot assert their own right to counsel, while insuring the least

disruption . . .[,]” id.; however, other than the particular substantive and

procedural facts in K.M.G., clear guidelines for what suffices as an Orphans’

Court determination are not clear.1

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1 This Court has remanded more than forty cases for failure to comply with

K.M.G. since the decision in 2020, with at least eight such cases in 2024 alone. See e.g., In re Adoption of A.G.R., 315 A.3d 51 (Pa. Super. 2024) (unpublished memorandum, at *3) (remanding where the Orphans’ Court delegated its prescribed role of determining whether counsel could represent the dual interests of Children to Attorney Roland); see also In re Adoption (Footnote Continued Next Page)

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The K.M.G. Court held the Orphans’ Court, before appointing the GAL

to act as legal counsel, must make an independent determination that there

is no conflict of interest between the differing roles of GAL and legal counsel.

See id. The Court did not indicate what particular timing satisfies the

requirement the determination be made “before appointment,” but in K.M.G.,

the Orphans’ Court Order addressing the Court’s conflict determination and

appointing the GAL was filed on January 8, 2018, approximately one month

before the termination of parental rights hearing. Id. at 1226. Furthermore,

while the K.M.G. Court did not mandate a written court order appointing

counsel, the Court reviewed the written order from the Orphans’ Court. Id.

at 1242-43. K.M.G. establishes that an appointment well in advance of the

termination hearing with an accompanying written order shows that the court

made an independent conflict determination prior to appointment. However,

K.M.G. does not provide clear parameters of what does not suffice as an

independent review before appointment of the GAL as legal counsel as

required.

of K.L.B., 324 A.3d 1225 (Pa. Super. 2024) (unpublished memorandum at *3) (remanding where, for the first time, in its Rule 1925(a) opinion the trial court noted the dual nature of Attorney Father’s representation and provided an after-the-fact determination that the Children’s best interests and legal interests did not conflict); In re Adoption of L.P.D., 321 A.3d 971 (unpublished memorandum at *3) (remanding where, upon review of certified record no order existed indicating consideration of appointment or conflict determination, and only place in certified record mentioning conflict determination was the dually appointed attorney noting at the termination hearing that “she met with Child ‘several times’ and she determined that she does not ‘have a conflict between his stated and best interests’”).

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Moreover, our Supreme Court clearly stated that, on appeal, it is

incumbent upon this Court to ensure that the Orphans’ Court complied with

this mandate. See id.

In a recent opinion, this Court held that the Orphans’ Court did not

comply with K.M.G., where, in its appointment order, the court merely asked

counsel to notify it if any possible conflict arose. See Matter of Adoption of

A.C.M., --- A.3d ---, 2025 WL 840191, at **3-4 (Pa. Super. Mar. 18, 2025).

Moreover, I do not believe K.M.G. compliance occurs when, following

appointment, the Orphans’ Court simply asks the GAL/counsel at the

termination hearing (essentially at the bar of the court immediately prior to

the termination hearing) whether there is a conflict, accepts a bald answer

from counsel, and makes no further inquiry or finding. See In re Adoption

of L.B.M., 161 A.3d 172, 183 (Pa. 2017) (“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.”); A.C.M., supra at **3-4.

Here, a binary, record-based review of the certified record in this appeal

revealed only one order that mentioned the appointment of legal counsel for

the termination hearing. See Pre-Trial Order-Petition to Terminate Parental

Rights 1/20/22, ¶ 2. The order merely appointed counsel for the children with

no mention of a conflict determination. The only record-based mention of a

conflict determination occurred on the first day of the termination hearing

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wherein appointed counsel, without prompting from the Orphan’s Court, noted

that she believed there was no conflict, to which the court replied, “I will make

that finding as well.” N.T., 6/6/24, at 6, 8. Given the lack of a written order

indicating an independent conflict determination, and no written record

indicating an independent consideration of a conflict determination other than

the day of the hearing when counsel put her determination on the record and

the court’s wholesale adoption thereof, I do not believe this complies with the

directives of K.M.G. to make an independent conflict determination before

appointment.

While the learned Majority’s substantive analysis is well reasoned — and

I am loathe to disrupt the much-needed finality for these children ─ given the

reasoning in K.M.G., on the record facts I am compelled to dissent. Thus, I

would vacate the decree in this matter and remand to the Orphans’ Court for

the limited purpose of creating a record in compliance with K.M.G.

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