In re T.S.

¶1I join Sections I and II of the majority opinion, and concur in the result as to the remainder. I write separately to note what is, in my view, a critical difference between this case and In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172 (2017).

¶2In L.B.M. , the termination of parental rights (TPR) proceedings were initiated by the guardian ad litem (GAL) on behalf of an eight-year-old, articulate child who equivocated over his preferred outcome. Id. at 176-177. The unanswerable question giving rise to structural error under those circumstances was how the child's preferences might have been advanced more definitively had legal counsel been appointed as required under 23 Pa.C.S. § 2313(a). Id. at 182. There was manifest potential for a conflict of interest between the child's best interests and legal interests in the GAL-attorney's zealous pursuit of the termination of the mother's parental rights.

¶3Here, there is no dispute over the children's preference: the parties agreed they cannot have formed one. See Majority Opinion, op. at 1089.1 Moreover, the Allegheny County Office of Children Youth and Families (CYF) initiated the TPR proceedings, and was involved with the children almost since birth, having custody of the two-year-old and three-year-old for over half their young lives. Id. at 1083-84. The GAL-attorney represented the children's best interests and legal interests without an apparent conflict of interest. Under the circumstances presently before us, I consider the appointment of separate counsel to represent the child's legal interests to be unnecessary.

¶4JUSTICE DONOHUE, concurring and dissenting

¶5As this Court held in In re L.B.M. , 639 Pa. 428, 161 A.3d 172 (2018), the clear and unambiguous language of 23 Pa.C.S. § 2313(a) requires that the orphans' court "appoint counsel to represent the child" in a proceeding to terminate her parents' rights, which we further stated means "the child's preferred outcome." Id. at 174. Given the age of the children and the facts of record, we were not asked in L.B.M. to decide the question presented here - what is the legal interest of a child too young to express a desired outcome?1 For the reasons explained in this Concurring and Dissenting Opinion, it is my view that there is a presumption that a child's legal interest is aligned with her parent, and in a contested termination proceeding a non-expressive child is presumed to oppose termination of her parent's rights.

¶6The Majority has concluded that since a non-expressive child cannot make her desired outcome known to counsel, the answer is self-evident - the child has no wishes for purposes of the termination *1094proceeding. See Majority Op. at 1089-90 ("[I]f the wishes of the child cannot be ascertained, the GAL has no duty to "advise the court" of such wishes. For purposes of the proceeding, such wishes do not exist."). The problem with this conclusion is readily apparent - section 2313(a) mandates that the orphans' court "appoint counsel to represent the child" in the proceeding. We unanimously agreed in In re L.B.M. that section 2313(a) counsel must represent "the child's preferred outcome." The logical extension of the Majority's holding is that a child who cannot express a preferred outcome has no need for the appointment of counsel under section 2313(a) since the child has no legal interest (i.e., no preferred outcome).

¶7Apparently recognizing the dilemma, the Majority resolves it by importing language from section 6311(b) of the Juvenile Act, which governs the powers and duties of a GAL representing a child in a dependency action, to section 2313(a) of the Adoption Act. Id. at 1089-90. Respectfully, in my view, the Majority's approach is fundamentally flawed for several reasons.2

¶8First, it is a well-settled principle of statutory construction that when interpreting a statute, courts are bound by the plain, unambiguous language of a statute, and "the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b). "[W]here the legislature includes specific language in one section of the statute and excludes it from another, the language should not be implied where excluded." Fonner v. Shandon, Inc. , 555 Pa. 370, 724 A.2d 903, 907 (1999) (citingCali v. City of Philadelphia,406 Pa. 290, 177 A.2d 824, 832 (1962) ). "Moreover, where a section of a statute contains a given provision, the omission of such a provision from a similar section is significant to show a different legislative intent." Id. (citing Commonwealth v. Bigelow , 484 Pa. 476, 399 A.2d 392, 395 (1979) ). "In construing a statute, the court must ascertain and give effect to the legislative intention as expressed in the language of the statute, and cannot, under its powers of construction, supply omissions in a statute, especially where it appears that the matter may have been intentionally omitted[.]" L.S. ex rel. A.S. v. Eschbach , 583 Pa. 47, 874 A.2d 1150, 1156 (2005) (quoting Kusza v. Maximonis,363 Pa. 479, 70 A.2d 329, 331 (1950) ).

¶9Section 6311 of the Juvenile Act provides that a GAL in a dependency proceeding is tasked with representing both the best interest and legal interest of the child, 42 Pa.C.S. § 6311(a), and that in the latter capacity, the GAL must

[a]dvise the court of the child's wishes to the extent 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 *1095child, [the GAL shall] determine to the fullest extent possible the wishes of the child and communicate this information to the court.

¶1042 Pa.C.S. § 6311(b)(9) (emphasis added). Section 2313(a) of the Adoption Act, on the other hand, simply requires the orphans' court to "appoint counsel to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents." 23 Pa.C.S. § 2313(a). It calls for the appointment of "counsel," not a GAL, which is the role that section 6311 of the Juvenile Act addresses. Section 2313(a) contains no provision to allow for a dual representation role in termination proceedings and makes no exception to the required representation of the child's legal interests for circumstances where the attorney cannot ascertain the child's wishes.

¶11The General Assembly was unquestionably aware that involuntary termination proceedings are often brought when children are very young and unable to express their preferences. In fact, the General Assembly adopted the federal Adoption and Safe Families Act, which was enacted in an effort to curb the number of children that were growing up in foster care by requiring, inter alia, that juvenile courts ensure that petitions to terminate parental rights are filed, in appropriate cases, once a child had been in an out-of-home placement for fifteen of the past twenty-two months. See42 U.S.C. § 675(5)(E) ; 42 Pa.C.S. § 6351(f)(9) ; In re Adoption of S.E.G. , 587 Pa. 568, 901 A.2d 1017, 1019 (2006).

¶12The General Assembly could have written section 2313 to require the appointment of counsel only where the child could express a desired outcome. The General Assembly could have included a provision in section 2313 that counsel representing the child is only required to communicate the child's wishes to the extent they can be ascertained, as it did in section 6311(b) of the Juvenile Act. It could have provided for a GAL, instead of counsel, to represent a non-expressive child. The General Assembly did not choose any of these options. Because the General Assembly omitted from the Adoption Act provisions that it chose to include under the Juvenile Act, reading this language into the Adoption Act runs directly counter to our rules of statutory construction.3

¶13Moreover, the stakes are very different in dependency and termination proceedings. Termination of a parent's rights is, in essence, a death sentence for the parent/child relationship, as it is permanent and irrevocable. SeeIn Interest of Lilley , 719 A.2d 327, 329 (Pa. Super. 1998). A finding of dependency, while also very serious, is a temporary intrusion into the life of a family. It is a remediable situation, which, ideally, will conclude with the family remaining intact. See 42 Pa.C.S. § 6301(b)(1) (identifying the purpose of the Juvenile Act as, inter alia, "[t]o preserve the unity of the family whenever possible"). For this reason as well, I find section 6311(b)'s explanation of the role of a GAL in a dependency proceeding to be inconsequential and of little value when interpreting the child's statutory right to counsel in a termination proceeding. In my view, it is of the utmost importance that a child's legal interest in a termination proceeding *1096is squarely and solely represented by her appointed counsel.

¶14It is a well-settled constitutional principle that a parent has a fundamental liberty interest "in the care, custody, and management of their child." Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). I acknowledge that the United States Supreme Court has not yet ruled upon whether a child has a separate and independent constitutionally protected right to be cared for and managed by her parent. Michael H. v. Gerald D. , 491 U.S. 110, 130, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) ("We have never had occasion to decide whether a child has a liberty interest, symmetrical with that of her parent, in maintaining her filial relationship."). In Santosky , however, the high Court recognized that a child has a right to the preservation of the parent/child relationship that is intertwined with the right of the parent. In Santosky , the Court was tasked with determining the burden of proof that must be met to involuntarily terminate a parent's right to his child, and held that, at a minimum, termination cases must be proven by clear and convincing evidence. Santosky , 455 U.S. at 769, 102 S.Ct. 1388. In so concluding, the Santosky Court rejected the argument that proof by a preponderance of the evidence was the appropriate standard in a termination case because "the child's interest in a normal family home" must be given equal weight "against the parents' interest in raising the child." Id. at 759, 102 S.Ct. 1388. The Court stated that "the State cannot presume that a child and his parents are adversaries" in a termination proceeding, as they "share a vital interest in preventing erroneous termination of their natural relationship." Id. at 760, 102 S.Ct. 1388.

¶15The Majority focuses on the adversarial posture of a parent versus the state as the driving force in the placement of the burden of proof and the ultimate holding of Santosky.See Majority Op. at 1091-92. True as this may be, in the same context, we must be cognizant of our General Assembly's mandate that the child at the center of the termination proceeding must have counsel in the proceeding who picks a side in the contest and participates, either for or against the parent's position. Santosky teaches that we cannot presume in this regard that the child is adverse to the parent's position.

¶16Santosky reflects a clear recognition that the child in a termination proceeding has a legal interest in maintaining the parent/child relationship, what is referred to as "their natural relationship." Santosky , 455 U.S. at 760, 102 S.Ct. 1388. This conclusion is informed not only by the human experience but by logic, as it would be incongruous for a parent to have a fundamental constitutional right to raise his child, but for the child to be born completely untethered in this regard to her parents. The child unquestionably has an interest in the outcome of a termination decision, as it dictates not only whether the parent/child relationship will remain intact, but whether other consanguineous relations will continue and whether the child will have a right to inherit and receive other financial benefits from her parents and their lineage. Our General Assembly has recognized that a child has a protectable legal interest at a termination proceeding based on its decision to require counsel to represent a child in a contested termination proceeding - if a child had no interest to protect, there would be no need for the child to have legal representation.4

¶17*1097The Majority's conclusion that a non-expressive child has no legal interest to protect in a termination proceeding, and that her right to counsel is therefore protected by a GAL representing her best interest, effectively creates a presumption that the child is in favor of termination in every case in which the GAL agrees with the petitioning party's recommendation to terminate parental rights (or where the GAL is the petitioner). See Majority Op. at 1090 ("there can be no conflict between an attorney's duty to advance a subjective preference on the child's part which is incapable of ascertainment, and an attorney's concurrent obligation to advocate for the child's best interests as she understands them to be"); see also 23 Pa.C.S. § 2512(a) (identifying who may file a petition to terminate parental rights).5 The reality in the vast majority of termination cases is that the GAL is an active participant providing zealous representation to his or her client through the presentation of evidence in support of termination. In such circumstances, the child is, by necessary implication, an adversary to her parents. Thus, in these cases, the Majority's conclusion that an attorney need only represent a non-expressive child's best interest at a termination proceeding is in direct contravention to Santosky 's admonishment against this presumption. SeeSantosky , 455 U.S. at 760, 102 S.Ct. 1388.

¶18Of course, the parent's fundamental right to the care, custody and management of his child is not interminable. A parent can voluntarily waive the fundamental liberty interest that he has in rearing his child and relinquish his parental rights. See 23 Pa.C.S. §§ 2501 - 2504. If the parent does not voluntarily relinquish his parental rights, but the petitioner nonetheless proves, by clear and convincing evidence, that termination is warranted under section 2511(a) and (b), the parent likewise forfeits this constitutional right. See generally , 23 Pa.C.S. § 2511(a) - (b) ; Santosky , 455 U.S. at 760-61, 102 S.Ct. 1388.

¶19The child's intertwined legal interest to have the care, custody and management of her parents is likewise malleable. An expressive child can communicate her preference in favor of termination. As a majority of the Court held in In re L.B.M. , in such circumstances, if the child's dependency GAL agrees that termination is in the child's best interest, that attorney can represent the child in the termination proceeding, as there would be no conflict. SeeIn re L.B.M. , 161 A.3d at 184 (Saylor, J., *1098concurring); id. at 185 (Baer, J., dissenting).

¶20Consistent with Santosky , the human experience and our General Assembly's mandate that counsel represent a child in a termination proceeding, in my view we must presume that the child's preference (and thus her legal interest) is to maintain the parent/child relationship. Consistent with our holding in In re L.B.M. and the obligation of counsel to represent his or her client's wishes (see Pa.R.P.C. 1.2(a) ), this presumption is rebuttable but only in the circumstance where the child expresses a contrary position. If a child is non-expressive, or if a child does not or cannot otherwise make a determination as to her view, the presumption remains that the child's legal interest is in opposing termination.

¶21In light of the recurring issues surrounding appointment of counsel for the child in termination proceedings, it is critical that the appointment and all proceedings surrounding it must be on the record. Moreover, the appointment must be made sufficiently in advance of the commencement of the termination proceedings to allow parents the opportunity to raise an objection to an appointment based on a conflict of interest and for the orphans' court to rule on the disqualification motion. In light of these considerations and my view that there is a rebuttable presumption against termination of parental rights, I envision the following sequence of events in the orphans' court.

¶22Pursuant to section 2313(a) of the Adoption Act, upon the filing of a petition to terminate parental rights, the orphans' court must undertake the appointment of counsel to represent the child. 23 Pa.C.S. § 2313(a). If the orphans' court wishes to appoint the child's dependency GAL as counsel to represent the child in the termination proceedings, the GAL must first determine whether the child is expressive, and if so, the child's preferred outcome of the termination proceeding. If the child is non-expressive (or is expressive and opposes termination) and the GAL agrees that termination of parental rights is not in the child's best interest, the GAL shall so inform the orphans' court and the other parties. The orphans' court thereafter may enter an order appointing the dependency GAL as counsel for the child in the termination proceeding. Otherwise, the orphans' court must appoint new counsel to represent the child.

¶23If, following the exercise of due diligence, the GAL concludes that the child is expressive and that the child does not oppose termination of her parents' rights, and the GAL likewise concludes that termination is in the child's best interest, then the GAL must advise the orphans' court of this conclusion. The child's parents may object to the appointment of the dependency GAL as the child's counsel based on evidence that the child is either non-expressive or that the expressive child opposes termination. Where it is the parent's view that the child is not expressive or that the child does not favor termination, their objection would be premised on the contention that a conflict of interest exists that precludes the GAL's appointment as counsel for the child.6 Upon parents' objection, the orphans' court must schedule a hearing to determine whether there is a conflict between the child's best and legal *1099interests such that the GAL is precluded from being appointed as the child's counsel in the termination proceeding.

¶24The authority of a trial court judge to decide whether an attorney is laboring under a conflict of interest is well settled:

A trial judge, in the exercise of his inherent power to control litigation over which he is presiding and his duty to supervise the conduct of lawyers practicing before him so as to prevent gross impropriety, has power to act where the facts warrant it. This supervisory power is analogous to a judge's power to hold in contempt of court a lawyer guilty of contumacious conduct in the trial of a case. Where a breach of ethics is made to appear, the relief is usually the granting of a motion to disqualify and remove the offending lawyer[.]

¶25Slater v. Rimar, Inc. , 462 Pa. 138, 338 A.2d 584, 589 (1975) (footnotes omitted). If, following a hearing, the orphans' court finds that there is a potential conflict between the GAL's representation of the child's legal interest and the concurrent representation of the child's best interests in the ongoing dependency proceedings, the orphans' court must appoint new counsel to represent the child at the termination hearing. SeeSeifert v. Dumatic Indus. Inc. , 413 Pa. 395, 197 A.2d 454, 455 (1964) ("The test in such cases is not the actuality of conflict but the possibility that conflict may arise."). If, however, the orphans' court is satisfied that the child has expressed her preference in support of termination, the orphans' court may appoint the GAL as the child's counsel in the termination proceeding. Whether it is the GAL or a new attorney, the orphans' court shall thereafter issue an order appointing counsel to represent the child.

¶26Based on my proposed construct, the failure of the parents to object to the appointment of the dependency GAL to represent the child as her counsel prior to the commencement of the termination proceeding would result in waiver of that claim. Nonetheless, I agree with the Majority that in the case at bar, Mother did not waive her argument that the orphans' court improperly failed to appoint counsel to represent the child's legal interests, as the claim currently is not waivable. See Majority Op. at 1087.

¶27In the case at bar, it is uncontested that the children (ages two and three at the time of termination) were unable to express their preferred outcome regarding termination. See Mother's Brief at 23; KidsVoice's Brief at 14; CYF's Brief at 18. Therefore, I conclude that we must vacate the decrees terminating Mother's parental rights to T.S. and E.S. and remand for a new termination proceeding, prior to which the orphans' court must appoint counsel to represent the children's presumptive interest in opposing termination.

¶28In summary, I agree with the Majority's determination, in Part II of its decision, regarding the question of whether Mother waived the issue of the appointment of separate legal counsel to represent the children in the termination proceeding. Otherwise, for the foregoing reasons, I respectfully dissent.

¶35By statute, our General Assembly has mandated:

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....

¶3623 Pa.C.S. § 2313(a). This is neither a guideline nor a suggestion. It is the law.

¶37In view of this unequivocal statutory command, we very recently held: " Section 2313(a) requires the appointment of counsel who serves the child's legal interests in *1100contested, involuntary TPR proceedings." In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172, 180 (2017). We observed that, "when a child's relationship with his or her birth family could be severed permanently and against the wishes of the parents, the legislature made the policy judgment, as is evident from the plain, unambiguous language of the statute, that a lawyer who represents the child's legal interests, and who is directed by the child, is a necessity." Id.1 We held that "the failure to appoint counsel for a child involved in a contested, involuntary termination of parental rights proceeding is a structural error and is not subject to a harmless error analysis." Id. at 183. We remanded for appointment of counsel and for a new TPR proceeding. Id.

¶38Because four L.B.M. justices agreed that a guardian ad litem ("GAL") who is an attorney can proceed at a TPR hearing to represent both a child's legal interests and her best interests in the event that those interests do not conflict with one another, today's learned Majority approves the trial court's failure to appoint counsel here. In so doing, the Majority validates the lower courts' violation of Section 2313(a).2

¶39I respectfully dissent.3

¶40As I observed for the plurality in L.B.M. , concerns arise when the dependency GAL serves as legal counsel in the TPR proceeding. L.B.M. , 161 A.3d at 181. When the same lawyer acts in the dual capacity of GAL in dependency proceedings and legal counsel in the TPR hearing, role confusion is likely, particularly in circumstances where the child may direct counsel in the TPR hearing, but may not direct the GAL in the dependency proceeding. See id. The likelihood that dependency proceedings will continue after the TPR petition is filed (as indeed happened here4 and in L.B.M. , id. at 176 ) renders toggling between the roles of counsel (serving the child's legal interests) and GAL (serving the child's best interests) unsustainable. "To permit the dependency GAL to serve also as the TPR counsel while proceedings in each matter are ongoing increases the risk of confusion and may force the attorney to take conflicting stances in the proceedings depending on the role being performed at the time." Id. Section 2313(a) mandates an independent attorney; the GAL cannot serve both functions. Id. at 181 n.14. The Majority's desire to foster "continuity of representation," Maj. Op. at 1084, does not ameliorate this "two-hat" problem. Nor does it permit us to fashion a judicial nullification of the General Assembly's mandate of legal counsel. For these reasons, I maintain that the attorney-GAL cannot represent the child's legal interests at a contested TPR hearing without running afoul of Section 2313(a).

¶41*1101Further, as we held in L.B.M. , the child's best interests are for the trial court to determine. L.B.M. , 161 A.3d at 174. Section 2313(a) reflects the General Assembly's policy determination that counsel is required to advocate on behalf of the child's legal interests. Those legal interests may align with or diverge from the child's best interests. Those legal interests may also align with termination or with preservation of the family unit. Because Section 2313(a) counsel represents solely the child's legal interests, I do not support a presumption that a pre-verbal child's legal interests always dovetail with the child's best interests. Nor do I support a presumption that a pre-verbal child's legal interests always equate with preservation of the putative familial bond.5 The Majority sufficiently refutes Mother's position that our law supports a presumption of preservation. See Maj. Op. at 1092. Instead of leaning on a presumption, Section 2313(a) counsel must make an independent assessment of the child's legal interests. If the child is pre-verbal, then counsel must make use of whatever means are available and appropriate to make that assessment, including, but not limited to, observation of the child with the parents and foster parents and interviews of those involved in the child's case.6

¶42I recognize that a majority of Justices in L.B.M. nonetheless would allow an attorney-GAL to wear both hats at a contested TPR hearing, albeit only in the event that the child's best interests and legal interests are not in conflict. Still, today's Majority takes us further afield. The Majority's approach ensures that any such conflicts will likely be obscured and overlooked, and effectively validates post hoc justifications for trial court violations of Section 2313(a)'s commands. At best, today's Majority has failed to provide adequate guidance for determining whether a conflict in fact exists.

¶43In the case at bar, because the children were very young and thus unable to articulate their wishes, the Majority concludes that "there can be no conflict" between the children's best interests and legal interests. Maj. Op. at 1092. Thus, holds the Majority, Section 2313(a) is "satisfied," id. , because the attorney-GAL could represent the children in the contested TPR hearing. The Majority ventures that a child may be able to express "opinions which are entitled to weight in legal proceedings" by the age of "five or six." Id. at 1089 n.17 (quoting Pa.R.P.C. 1.14, Explanatory Comment 1). Quite apart from the issue of whether an explanatory comment to an attorney conduct rule can afford a precedential guide for our courts,7 the Majority's discussion *1102effectively begs the question: no standard is provided to guide trial judges.

¶44The determination of whether a particular child can or cannot express her interests or desires must be made by the trial court. Often, this will be a highly fact-specific inquiry based not only upon the child's age, but also upon her relative abilities or disabilities, among many other factors. Further, legal counsel often may be able to glean information about even a pre-verbal child's wishes by observing interactions between the child and parent. This Court cannot create and pronounce a bright-line rule that children of a specific age are able or unable to express their legal interests. The trial court, which can observe the children closely and hear testimony about their particular abilities and circumstances, must do so.8

¶45Who makes the decision as to whether a conflict exists between legal interests and best interests? One of the L.B.M. dissenters went so far as to suggest that the attorney-GAL herself should be authorized to make that decision, on the basis of her own assessment of professional conduct standards.9 I disagree. The General Assembly *1103mandated that, in a contested TPR hearing, the court must appoint counsel for the child. The matter is not up for debate, much less for judgment call by an individual attorney-GAL. At a minimum, it is the trial court's duty to determine, following argument and likely following hearing,10 whether the attorney-GAL can continue as legal counsel or whether a new attorney must be appointed. Any other procedure would pay mere lip service to the child's right to counsel, and would work a judicial nullification of that right.

¶46To be sure, the attorney-GAL's opinion as to the existence or non-existence of a conflict between the child's legal interests and best interests is relevant and material to the court's decision. But, before making its determination, the court must hear from the other parties as well. As today's Majority concedes:

The statutory right under Section 2313(a) belongs to the child.... There was no attorney representing solely the children's legal interests who could have raised their rights in the trial court, and the children plainly could not have done so themselves.

¶47Maj. Op. at 1087 (citations omitted). That there will be no one who solely represents the child's legal interests at the time that the trial court appoints Section 2313(a) counsel is precisely why the court must itself determine whether there is a conflict. This analysis may not be delegated or off-loaded to the attorney-GAL.

¶48Following argument (and, preferably, hearing) on the conflict inquiry, the trial court must ensure that the child's right to counsel is protected and must remind all involved that, if the attorney-GAL is permitted to serve as the Section 2313(a) legal counsel, her role has changed from representing best interests to representing legal interests. Additionally, the entry of an appointment order is necessary at the start of the TPR proceedings to drive home the change in role and to provide a reviewing court with the certainty that the child's statutory right to counsel was fully vindicated.11 I emphasize that it is undisputed that no such order was ever entered by the trial court in this case.

¶49Further complicating the matter is the issue of how these cases should be analyzed on appeal. In L.B.M. , a majority of this Court held that the failure to appoint counsel for a child in a contested TPR hearing was a structural error. L.B.M. , 161 A.3d at 183. Section 2313(a) mandates that counsel be appointed, a circumstance which ensures that all parties, including the child, will have a full and fair opportunity to participate in a contested TPR hearing. "The denial of mandated counsel compromises the framework of the proceedings and constitutes a structural error." Id.

¶50Today's Majority acknowledges this holding, but determines that, because an attorney-GAL representing a child's best interests purportedly satisfies Section 2313(a) when the child cannot verbalize a preference, there was no error in permitting the attorney-GAL here to continue to *1104represent the children in the TPR proceedings. The Majority proceeds to conclude that, because there was no error, there also could be no structural error. Maj. Op. at 1092. By declaring post hoc that Section 2313(a) was not infringed, the Majority puts the proverbial bunny in the hat. I do not believe that this ex post facto validation suffices. Because the trial court erred in failing to appoint counsel, and in failing to inquire of any potential conflict, the Majority errs in allowing the disposition below to stand untroubled.

¶51The infirmities in the Majority's perspective are illustrated by the lower courts' application of L.B.M. to TPR cases. Unfortunately, it appears that courts are taking a harmless error approach: determining retrospectively that there is no record evidence of conflict between the child's best interests and legal interests, and then proceeding on a bootstrap basis to render an after-the-fact finding that there was no structural error; all this, notwithstanding that there was no opportunity at trial to develop a record of any such conflict or even to provide argument on the question. It is for these reasons that I disagree with the Majority's tacit endorsement of In re D.L.B. , 166 A.3d 322 (Pa. Super. 2017).

¶52In D.L.B. , a Superior Court panel reviewed a challenge to the termination of the father's parental rights. After reciting the trial court's findings regarding the father's failure to meet his goals and participate fully in services provided to him, the Superior Court reviewed and analyzed the trial court's basis for terminating the father's parental rights. Id. at 326-29. After determining that the trial court had sufficient grounds for termination, the Superior Court addressed the father's challenge that the trial court had failed to appoint legal counsel for the child, in violation of L.B.M. The Superior Court reasoned that four Justices in L.B.M. would have permitted the GAL to represent the child in the TPR hearing when the child's best interests and legal interests did not conflict. The entire extent of the Superior Court's analysis of that conflict inquiry was simply the following: "As our decision discusses, [the child's] best interests and legal interests were unquestionably well represented by [the GAL] in this case and such interests were never in conflict." Id. at 329. The Superior Court never identified, much less discussed, the child's legal interests. This type of post hoc ratification of the GAL's continued representation of the child in a TPR hearing is not in accord with L.B.M. 's holding regarding structural error, nor does it satisfy the statutory requirement of counsel.

¶53It appears that lower courts are concluding solely that, if there was sufficient evidence to terminate parental rights, there was necessarily no conflict between the child's best interests and legal interests and, ipso facto , no error. This is a textbook harmless error analysis, and it patently defies L.B.M. 's structural error holding.12

¶54Having spent several years presiding in juvenile cases, I recognize and appreciate the importance of delivering permanency to the children involved in these contested TPR proceedings and the value of doing so without undue delay. Nonetheless, in our desire to do right by these children, we cannot overlook or override the right to counsel that the General Assembly has bestowed upon them. By providing post*1105hoc justification for the failure to appoint independent counsel, that is exactly what today's decision does.