J-A06023-18

                                  2018 PA Super 182


    IN RE: J’K.M., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: A.M., NATURAL                   :
    MOTHER                                     :
                                               :
                                               :
                                               :
                                               :   No. 1390 WDA 2017

                 Appeal from the Order Entered August 24, 2017
    In the Court of Common Pleas of Allegheny County Family Court at No(s):
                            CP-02-DP-0000208-2016


BEFORE:       BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.

OPINION BY SHOGAN, J.:                                    FILED JUNE 26, 2018

        A.M. (“Mother”), the natural mother of J’K.M. (“Child”), appeals from

the order entered on August 24, 2017, denying Mother’s motion for the

appointment of a separate guardian ad litem (“GAL”), to represent Child’s

best interests in the underlying dependency proceedings.1           After careful

review, we reverse and remand for the trial court to appoint a GAL to

represent Child’s best interests and Child’s current GAL shall act as counsel

representing Child’s legal interests.

        The trial court set forth the relevant facts and procedural history of

this matter as follows:

____________________________________________


1 We are satisfied that, although the order in question is not a final order, we
have jurisdiction, and this appeal is properly before our Court as an appeal
from a collateral order pursuant to Pa.R.A.P. 313(b).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A06023-18


              [Child] is a 16 year old girl[2] who had previously been
        declared dependent[3] but remained in the care of [M]other.
        [Child has, at times, been placed in foster care. Order, 4/18/16;
        Order 7/27/17.]       [Child] has a history of serious health
        problems, specifically asthma that requires close medical
        supervision. On a number of occasions [M]other and [Child] both
        neglected the appropriate medication to control [Child’s] asthma.
        As a result of this neglect [Child] was required to be hospitalized
        on a      number     of occasions.      Additionally,  after   said
        hospitalizations doctor[‘s] appointments have been scheduled for
        [Child] to monitor and follow up on her treatment. Once again,
        [M]other and [Child] more than once failed to attend these
        appointments. As a result of the failure to appreciate the
        seriousness of [Child’s] asthma and the impact on her health she
        has been hospitalized on more than one occasion. The
        caseworker testified that there is family history of serious
        asthma complications including the death of [Child’s] father as
        asthma related.

              In addition to the health concerns, testimony was set forth
        at a Permanency Review Hearing on June 19, 2017 before
        Hearing Officer Hobson that [Child] often stays away from home
        for multiple nights with either friends or her boyfriend.
        Specifically, at the time of the hearing [Child] had been staying
        with her boyfriend because of a fight she had with [M]other.

              Prior to the Permanency Review Hearing Attorney Engle
        was appointed both as Attorney for [Child], as well as Guardian
        Ad Litem for [Child].

              During the Permanency Review Hearing testimony was
        presented by [M]other who confirmed that she had missed
        meetings and indicated that she had a “full plate” with her other
        children and sometimes had difficulties making all medical
        appointments. [Child] also testified and indicated that she
____________________________________________


2   Child turned seventeen in March of 2018.

3 Child was adjudicated dependent pursuant to 42 Pa.C.S. § 6302(1), as she
was “without proper care or control, subsistence, education as required by
law, or other care or control necessary for his physical, mental, or emotional
health, or morals.” Order, 4/18/16.



                                           -2-
J-A06023-18


       wanted to be in charge of her medical treatment but understood
       at age 16 she was unable to do so. That being said, [Child] was
       allowed to fully testify by Attorney Engle and she fully set her
       position that she wished to return home to [M]other. [Child] did
       not like living in foster care because she was made to follow a
       more structured schedule with things such as eating meals,
       sleep times and attendance of school. At the conclusion of the
       testimony Attorney Engle, in the role as Counsel for [Child] set
       forth [C]hild’s legal interests which is the expression of the
       child’s wishes. Attorney Engle set forth that [C]hild’s testimony
       was clear both as to her reasoning to go home to live with
       [M]other and her desire to remain with [M]other.[4] Attorney
       Engle then acting as Guardian Ad Litem was required to set forth
       the appropriate Guardian Ad Litem opinion as to the best interest
       for [Child]. This Opinion was based upon the on-going
       hospitalizations of [Child], [M]other’s failure to attend medical
       appointments, [and Child’s] failure to attend medical
       appointments as well as truancy issues[;] [these factors] caused
       the Guardian Ad Litem to opine that [Child] should be removed
       from the home.

            It was at this point counsel for [M]other objected and
       asked for the appointment of a separate Guardian Ad Litem. …

            Counsel for [M]other filed what was entitled a Motion For
       Appointment For Separate Guardian Ad Litem. While this Court
____________________________________________


4 As a point of clarification, the trial court states that Child “wished to return
home to [M]other” and was clear “as to her reasoning to go home to live
with [M]other.” Trial Court Opinion, 11/20/2017, at 2. Later in its opinion,
the trial court states that Attorney Engle “set forth reservations as to the
return of [Child] to [M]other.” Id. at 5. However, the record indicates that
Mother had physical custody of Child at the time of the June 2017 hearing.
See Permanency Review Order (Non-Placement) – Amended, 6/19/2017, at
2. Thus, Child was living with Mother, although Child admitted that she was
spending three to four nights a week away from Mother’s home. N.T.,
6/19/2017, at 49. Child testified that she wanted to keep living with Mother
and did not wish to return to foster care. N.T., 6/19/2017, at 52. Attorney
Engle, on the other hand, stated his belief that it was in Child’s best interest
to be removed from Mother’s home but did not specify where Child should
be placed.




                                           -3-
J-A06023-18


       believes such Motion was incorrectly titled, the Court treated the
       Motion [as] a Motion To Disqualify Attorney Engle as Guardian
       Ad Litem due to conflict of interest.

             A hearing was conducted before this Court on the Motion
       at which time all parties stipulated to the transcript of the
       proceedings before Hearing Officer Hobson. No further testimony
       or any factual evidence was presented at the time of this Motion.
       After hearing the legal arguments of all parties this Court denied
       the request to appoint a separate Guardian Ad Litem.

Trial Court Opinion, 11/20/17, at 1-3.

       On September 25, 2017, Mother filed a timely notice of appeal.5 Both

Mother and the trial court complied with Pa.R.A.P. 1925.

       On   appeal,    Mother     raises   the   following   issue   for   this   Court’s

consideration:

       Does a conflict of interest arise when a child expressly states
       their preferred outcome and the GAL attorney advocates for
       another?

Mother’s Brief at 6 (full capitalization omitted).

       Review in dependency cases requires an appellate court to accept the

findings of fact and credibility determinations of the trial court if they are

supported by the record, but it does not require the appellate court to accept

the lower court’s inferences or conclusions of law. In Interest of J.P., 178
____________________________________________


5 The thirtieth day after the entry of the August 24, 2017 order fell on
Saturday, September 23, 2017. See Pa.R.A.P. 903(a) (generally, the notice
of appeal must be filed within thirty days after the entry of the order from
which the appeal is taken).        Accordingly, Mother had until Monday,
September 25, 2017, to file a timely notice of appeal. See 1 Pa.C.S. § 1908
(when the last day of a given time period in a statute falls on a Saturday,
Sunday, or legal holiday, such day shall be omitted from the computation).



                                           -4-
J-A06023-18


A.3d 861, 864 (Pa. Super. 2018).     Accordingly, we review the trial court’s

decision under an abuse-of-discretion standard. Id.

     Necessary to our discussion of Mother’s issue are two Pennsylvania

Rules of Juvenile Court Procedure and one section of the Juvenile Act, 42

Pa.C.S. §§ 6301-6375.     Rule 1151 of the Pennsylvania Rules of Juvenile

Court Procedure provides, in relevant part:

     Assignment of Guardian Ad Litem & Counsel

     A. Guardian ad litem for child. The court shall assign a
     guardian ad litem to represent the legal interests and the best
     interests of the child if a proceeding has been commenced
     pursuant to Rule 1200 alleging a child to be dependent who:

           (1) is without proper parental care or control,
           subsistence, education as required by law, or other
           care or control necessary for the physical, mental or
           emotional health, or morals;

                                    ***

     B. Counsel for child. The court shall appoint legal counsel for a
     child:

           (1) if a proceeding has been commenced pursuant to
           Rule 1200 alleging a child to be dependent who:

                 (a) while subject to compulsory school
                 attendance is habitually and without
                 justification truant from school;

                 (b) has committed a specific act or acts
                 of    habitual   disobedience   of   the
                 reasonable and lawful commands of the
                 child’s guardian and who is ungovernable
                 and found to be in need of care,
                 treatment, or supervision;




                                    -5-
J-A06023-18


                 (c) is under the age of ten years and has
                 committed a delinquent act;

                 (d) has been formerly adjudicated
                 dependent, and is under the jurisdiction
                 of the court, subject to its conditions or
                 placements and who commits an act
                 which is defined as ungovernable in
                 paragraph (B)(1)(b);

                 (e) has been referred pursuant to section
                 6323 (relating to informal adjustment),
                 and who commits an act which is defined
                 as ungovernable in paragraph (B)(1)(b);
                 or

                 (f) has filed a motion for resumption of
                 jurisdiction pursuant to Rule 1634; or

           (2) upon order of the court.

     C. Counsel and Guardian ad litem for child. If a child has
     legal counsel and a guardian ad litem, counsel shall represent
     the legal interests of the child and the guardian ad litem shall
     represent the best interests of the child.

Pa.R.J.C.P. 1151(A)-(C). Rule 1154 provides:

     Duties of Guardian Ad Litem

     A guardian ad litem shall:

     (1) Meet with the child as soon as possible following assignment
     pursuant to Rule 1151 and on a regular basis thereafter in a
     manner appropriate to the child’s age and maturity;

     (2) On a timely basis, be given access to relevant court and
     county agency records, reports of examination of the guardians
     or the child, and medical, psychological, and school records;

     (3) Participate in all proceedings, including hearings before
     juvenile court hearing officers, and administrative hearings and
     reviews to the degree necessary to adequately represent the
     child;

                                   -6-
J-A06023-18



      (4) Conduct such further investigation necessary to ascertain the
      facts;

      (5) Interview potential witnesses, including the child’s guardians,
      caretakers, and foster parents, examine and cross-examine
      witnesses, and present witnesses and evidence necessary to
      protect the best interests of the child;

      (6) At the earliest possible date, be advised by the county
      agency having legal custody of the child of:

            (a) any plan to relocate the child or modify custody
            or visitation arrangements, including the reasons,
            prior to the relocation or change in custody or
            visitation; and

            (b) any proceeding, investigation, or hearing under
            the Child Protective Services Law, 23 Pa.C.S. § 6301
            et seq. or the Juvenile Act, 42 Pa.C.S. § 6301 et
            seq., directly affecting the child;

      (7) Make any specific recommendations to the court relating to
      the appropriateness and safety of the child’s placement and
      services necessary to address the child’s needs and safety,
      including the child’s educational, health care, and disability
      needs;

      (8) Explain the proceedings to the child to the extent appropriate
      given the child’s age, mental condition, and emotional condition;
      and

      (9) Advise the court of the child’s wishes to the extent that they
      can be ascertained and present to the court whatever evidence
      exists to support the child’s wishes. When appropriate because
      of the age or mental and emotional condition of the child,
      determine to the fullest extent possible the wishes of the child
      and communicate this information to the court.

Pa.R.J.C.P. 1154.     Furthermore, the comment to Rule 1154 provides

guidance as to how the parties and the court are to manage a conflict

between the best interests and legal interests of a child as follows:

                                     -7-
J-A06023-18


       Comment: If there is a conflict of interest between the duties of
       the guardian ad litem pursuant to paragraphs (7) and (9), the
       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. If there is not a conflict of
       interest, the guardian ad litem represents the legal interests and
       best interests of the child at every stage of the proceedings. 42
       Pa.C.S. § 6311(b). To the extent 42 Pa.C.S. § 6311(b)(9) is
       inconsistent with this rule, it is suspended. See Rules 1151 and
       1800. See also Pa.R.P.C. 1.7 and 1.8.

       “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.

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

       Additionally, the relevant portion of the Juvenile Act, Section 6311,

which provides for the appointment of a GAL, states:

       (a) Appointment.--When a proceeding, including a master’s
       hearing, has been initiated alleging that the child is a dependent
       child under paragraph (1), (2), (3), (4) or (10) of the definition
       of “dependent child” in section 6302 (relating to definitions),[6]
       the court shall appoint a guardian ad litem to represent the legal
       interests and the best interests of the child. The guardian ad
       litem must be an attorney at law.

       (b) Powers and duties.--The guardian ad litem shall be
       charged with representation of the legal interests and the best
       interests of the child at every stage of the proceedings and shall
       do all of the following:
____________________________________________


6 As noted, Child was adjudicated dependent under Pa.C.S. § 6302(1).
Order, 4/18/16.



                                           -8-
J-A06023-18



          (1) Meet with the child as soon as possible following
          appointment pursuant to section 6337 (relating to
          right to counsel) and on a regular basis thereafter in
          a manner appropriate to the child’s age and
          maturity.

          (2) On a timely basis, be given access to relevant
          court and county agency records, reports of
          examination of the parents or other custodian of the
          child pursuant to this chapter and medical,
          psychological and school records.

          (3) Participate in all proceedings, including hearings
          before masters, and administrative hearings and
          reviews to the degree necessary to adequately
          represent the child.

          (4) Conduct such further investigation necessary to
          ascertain the facts.

          (5) Interview potential witnesses, including the
          child’s parents, caretakers and foster parents,
          examine and cross-examine witnesses and present
          witnesses and evidence necessary to protect the best
          interests of the child.

          (6) At the earliest possible date, be advised by the
          county agency having legal custody of the child of:

                (i) any plan to relocate the child or
                modify      custody       or     visitation
                arrangements, including the reasons
                therefor, prior to the relocation or
                change in custody or visitation; and

                (ii) any proceeding, investigation or
                hearing under 23 Pa.C.S. Ch. 63 (relating
                to child protective services) or this
                chapter directly affecting the child.

          (7) Make specific recommendations to the court
          relating to the appropriateness and safety of the


                                   -9-
J-A06023-18


            child’s placement and services necessary to address
            the child’s needs and safety.

            (8) Explain the proceedings to the child to the extent
            appropriate given the child’s age, mental condition
            and emotional condition.

            (9) Advise the court of the child’s wishes to the
            extent that they can be ascertained and present to
            the court whatever evidence exists to support the
            child’s wishes. When appropriate because of the age
            or mental and emotional condition of the child,
            determine to the fullest extent possible the wishes of
            the child and communicate this information to the
            court. A difference between the child’s wishes
            under this paragraph and the recommendations
            under paragraph (7) shall not be considered a
            conflict of interest for the guardian ad litem.

42 Pa.C.S. § 6311 (emphasis added).

      Thus, a dependency court is required by statute to appoint a GAL, who

must be an attorney.     42 Pa.C.S. § 6311(a).     The GAL is authorized to

represent both a child’s legal and best interests. Id. Pursuant to Section

6311(b)(7), the GAL’s duties in representing a child’s best interests include

making recommendations to the court regarding a child’s placement needs.

However, under Section 6311(b)(9), the GAL is to represent a child’s legal

interests by determining “to the fullest extent possible,” a child’s wishes, if

those wishes are ascertainable.     Factors that must be considered when

ascertaining a child’s wishes, or legal interests, are a child’s age and mental

and emotional condition. 42 Pa.C.S. § 6311(b)(9).

      The difficulty arises when, as occurred in this case, the two interests

conflict. In this regard, we find In re Adoption of L.B.M., 161 A.3d 172

                                    - 10 -
J-A06023-18


(Pa. 2017) instructive, despite that case involving the appointment of

counsel in termination of parental rights cases under 23 Pa.C.S. § 2313.

Justice Wecht, the author of the lead opinion in L.B.M., stated that 23

Pa.C.S. § 2313(a) requires the trial court to appoint counsel for a child in a

termination of parental rights case, and the failure to do so is a structural

error and is not subject to harmless error analysis.    L.B.M., 161 A.3d at

183. In part II-B of the lead opinion, Justice Wecht concluded that a trial

court is required to appoint counsel to represent a child’s legal interests

even when the child’s GAL, who is appointed to represent the child’s best

interests, is an attorney.   Justice Wecht concluded that the interests are

distinct and require separate representation.   Four members of the Court,

Chief Justice Saylor, and Justices Baer, Todd, and Mundy disagreed with

Justice Wecht’s strict application of Section 2313(a); rather, they opined, in

concurring and dissenting opinions, that separate representation is required

only if the child’s best interests and legal interests conflicted.   In other

words, a child’s GAL may serve as child’s counsel when the GAL’s dual role

does not create a conflict of interest. L.B.M., 161 A.3d at 183–193. Thus, a

conflict of interest analysis must be conducted to determine whether a

child’s legal interests diverge from the child’s best interests.       In re

Adoption of T.M.L.M., ___A.3d ___, 2018 PA Super 87, at *4 (Pa. Super.

2018) (remanding where a five-year old child’s preference was equivocal




                                    - 11 -
J-A06023-18


and child’s counsel had not interviewed the child to determine whether his

best interests and legal interests conflicted).

       Furthermore, although Section 6311(b)(9) provides that a dependency

GAL has no conflict of interest when the child’s best interests and legal

interests diverge, our Supreme Court suggested in such instances that the

GAL should request appointment as legal counsel and the assignment of a

separate GAL. L.B.M., 161 A.3d at 175 n.4 (citing Pa.R.J.C.P. 1154 cmt.);

see also In Interest of C.P., 155 A.3d 631, 634 n.2 (Pa. Super. 2017)

(“We note that if a child’s wishes conflict with the GAL’s belief of the best

interests of that child, the GAL has a conflict and the court may separate the

representation by retaining the GAL to act solely as the child’s attorney and

appointing a new GAL. Pa.R.J.C.P. 1151 cmt.”).7 Importantly, the Supreme

Court suspended Section 6311(b)(9) to the extent that it conflicts with Rule

1154. Pa.R.J.C.P. No. 1800(3). Thus, pursuant to L.B.M., C.P., Rule 1154

and its comment, and the specific suspension of Section 6311(b)(9), a

____________________________________________


7 We are cognizant that the dependency action in C.P. was necessitated due
to status offenses under 42 Pa.C.S. § 6302(6), as opposed to parental
failures under 42 Pa.C.S. § 6302(1) as in the case at bar. C.P., 155 A.3d at
633. Under the Section 6302 definitions, children can be adjudicated
dependent based on parental failures, such as here, or based on status
offenses. Status offenses are defined as “conduct which if engaged in by an
adult would not be legally prohibited.” In the Interest of R.B., 621 A.2d
1038, 1042 n.11 (Pa. Super. 1993) (citations omitted). Examples of status
offenses include truancy, running away from home, and ungovernability.
Id. Nevertheless, the discussion regarding conflict of interest is instructive.




                                          - 12 -
J-A06023-18


divergence between the child’s wishes under 42 Pa.C.S. § 6311(b)(9), and

the GAL’s recommendations under 42 Pa.C.S. § 6311(b)(7), may be

considered a conflict of interest for the GAL.8

        It is well settled that “[c]ompetency is the rule and incompetency the

exception.” Rosche v. McCoy, 156 A.2d 307, 309 (Pa. 1959). Moreover,

competency is presumed where the child is more than fourteen years of age.

Id. at 310. Child was not an infant as she was sixteen years old at the time

she testified that she wanted to remain in Mother’s care despite the GAL’s

position that it was in Child’s best interest to be placed elsewhere.

Specifically, Child testified as follows:


____________________________________________


8   In his Dissenting Opinion in L.B.M., Justice Baer concluded:

        [I]n dependency proceedings under the Juvenile Act, a GAL
        Attorney represents both the best interests and legal interests of
        the child absent a conflict of interest. If there is a conflict of
        interest, the child must have a GAL representing her best
        interests and separate legal counsel representing legal interests.
        This provision is consistent with Pennsylvania’s Rules of
        Professional Conduct which forbid an attorney from representing
        a client “if the representation involves a concurrent conflict of
        interest.” Pa.R.P.C. 1.7(a) (entitled “Conflicts of Interest:
        Current Clients”).

L.B.M., 161 A.3d at 187 (Baer, J., dissenting). Although this language is
not precedential, it is an apt discussion of the standards and duties inherent
in dependency proceedings where the GAL and the child have conflicting
interests. Indeed, despite being presented in Justice Baer’s Dissenting
Opinion, this language comports with the reasoning in Justice Wecht’s lead
opinion and Pa.R.J.C.P. 1154.




                                          - 13 -
J-A06023-18


       I feel as though the system failed me. I got raped. I got
       (inaudible) onto every house I came onto. I wasn’t eating in
       foster care homes. Why put me back in the situation where I
       was depressed, losing weight, (inaudible) came up in my room.
       I didn’t do nothing in placement but cry myself to sleep. And
       that’s unhealthy. And that’s when my grades went downhill. I
       wasn’t mentally stable, being I felt like I was just in a group
       home.     Nobody wanted me.      So why move me into that
       predicament because it’s not going to do nothing but make me
       go downhill again. And my grades not going to get no better.

N.T., 6/19/17, at 52. Thus, Child’s wishes were clearly ascertainable. See

Pa.R.J.C.P. 1154(9). Despite Child’s desire to remain in Mother’s care and

the ordeals Child stated previously had occurred in foster care, the GAL

argued against Child remaining at home. N.T., 6/19/17, at 55-56, 58-59.

The GAL’s best-interests position was based on his concern that Mother was

neglecting Child’s medical needs, resulting in Child attempting to manage

her medical condition and being hospitalized multiple times, as well as Child

spending numerous nights each week away from Mother’s home.

       We conclude that this divergence of opinions between Child’s legal

interests and best interests presents a conflict as contemplated in L.B.M.

and Pa.R.J.C.P. 1151 and 1154.                 Accordingly, the GAL should have

requested that the trial court appoint a separate GAL.9

____________________________________________


9 Although the GAL did not make such a request, Mother did so. On July 3,
2017, Mother motioned the trial court to appoint a separate GAL to
represent Child apart from Child’s current GAL. Mother averred there was a
conflict between Child’s best interests and her legal interests. Motion for
Appointment of Separate Guardian Ad Litem, 7/3/17, at ¶¶ 5-9. We are
satisfied that the issue of the appointment of a separate GAL due to a
(Footnote Continued Next Page)


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J-A06023-18


      In addressing this issue, the trial court noted that L.B.M. dealt with

the termination of parental rights, and that Justice Wecht, the author of the

lead opinion in L.B.M., distinguished between the need for separate counsel

in termination proceedings as opposed to dependency proceedings.              Trial

Court Opinion, 11/20/17, at 4.          The trial court correctly explained that if

there is a conflict between the GAL’s representations under Section 6311(7)

and the child’s wishes under Section 6311(9), a separate attorney may be

appointed, but if there is no conflict, the GAL would continue to represent

the child’s legal and best interests.          Trial Court Opinion, 11/20/17, at 5.

However, the trial court then stated as follows:

      A bald assertion such as has been made here, by counsel for
      [M]other, that because these two opinions conflict, there must
      be a conflict, is spurious and as such a baseless outcry which
      means little more than the “Trial Court was wrong”. There is no
      substance of the record nor can there be. The parties agreed to
      stipulate to the entire record of the Hearing Officer in this matter
      that being Hearing Officer Hobson. [Child] was allowed to testify
      and made clear her desires as to placement. She was not
      inhibited in any way by counsel and only after [Child] made her
      representations did the attorney, acting appropriately, set forth
      reservations as to the return of [Child] to [M]other. Acting as
      Guardian Ad Litem the record is clear that there were multiple,
      very well founded reasons to support the divergent opinion of
      the GAL from the legal interests of [Child].

Id.
(Footnote Continued) _______________________

conflict between Child’s legal and best interests was properly raised before
the trial court. See L.B.M., 161 A.3d at 176 (discussing an instance where
a parent, as opposed to the GAL, presented this issue to the trial court,
albeit in the context of termination proceedings).




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J-A06023-18


       Significantly, this analysis does not answer the salient questions: was

there a conflict, and if so, does it require the appointment of a separate

GAL?    In fact, in its opinion, the trial court affirmatively stated that there

was a conflict as Child and the GAL’s positions diverged. Trial Court Opinion,

11/20/17, at 5. The trial court then discussed Commonwealth v. Nixon,

761 A.2d 1151 (Pa. 2000), and stated that where parents cannot or will not

fulfill their duties, it is the obligation of the Commonwealth to take on that

role under the doctrine of parens patriae.10 Id. at 6. Applying this parens

patriae theory, the trial court stated that Child was not receiving proper

medical care, and it was the duty of the GAL to raise this concern. Id. The

trial court continued:

       The objection to a conflict simply because there was a disparity,
       is absolutely of no moment and shows a complete lack of
       understanding of both the appropriate statute and the Court’s
       interpretation of LBM Supra and its progeny. At no time did the
       objecting party attempt to place any evidence in record that
       would show that there would be a conflict due to privileged
       information and in fact at no time was there any attempt to
       show anything other than the disparity in the best interest of
       [Child] vers[u]s the legal interests. This reasoning is clearly
       insufficient to warrant the disqualification of the GAL and nothing
       in our statutes or our case law remotely suggests that that
       would be appropriate. As such, the Court entered the opinion
       that it did allowing Attorney Engle to continue both as counsel
       and GAL.


____________________________________________


10 Parens patriae refers to the role of the state as sovereign and guardian of
persons under a legal disability to act for themselves such as juveniles. D.P.
v. G.J.P., 146 A.3d 204, 211 n.9 (Pa. 2016) (citation omitted).



                                          - 16 -
J-A06023-18


Id. at 6-7. We are constrained to conclude that the trial court’s analysis is

misplaced.

      Although attorney-client privilege is one example of a potential conflict

contemplated in the comment to Pa.R.J.C.P. 1154, it is not the only potential

for conflict. Moreover, the trial court’s characterization of Mother’s desire to

“disqualify” the GAL is errant.   Nothing in the record leads this Court to

conclude that Mother simply wanted the GAL disqualified; Mother requested

the appointment of a separate GAL to represent Child’s best interests while

the current GAL represented Child’s legal interests, as contemplated in the

comment to Pa.R.J.C.P. 1154. Motion for Appointment of Separate Guardian

Ad Litem, 7/3/17, at ¶9.

      As noted above, Child and the GAL had diametrically opposed positions

on Child’s placement.      Child, who was sixteen years old, testified that,

among other things, she was raped in foster care, and despite the gravity of

this allegation, the GAL maintained that Child’s health issues and Mother’s

failures in this regard necessitated placement. N.T., 6/19/17, at 52, 55-56,

58-59. We conclude that these divergent opinions constituted a conflict, the

trial court abused its discretion in concluding otherwise, and erred in

refusing to appoint a separate GAL. Accordingly, we reverse the trial court’s

August 24, 2017 order that denied the appointment of a separate GAL, and

we remand this matter to the trial court for the appointment of a GAL to

represent Child’s best interests while the current GAL shall continue to


                                     - 17 -
J-A06023-18


represent Child’s legal interests as counsel for Child pursuant to Pa.R.J.C.P.

1151(C).

      Order reversed.     Case remanded with instructions.        Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2018




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