In the Interest of: B.C., a Minor ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.C., IV :
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: No. 712 MDA 2017
Appeal from the Decree March 24, 2017
In the Court of Common Pleas of Luzerne County
Orphans' Court at No(s): A-8497
BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 28, 2017
A.C., IV, (“Father”) appeals from the March 24, 2017 decree in the Court
of Common Pleas of Luzerne County involuntarily terminating his parental
rights to his daughter, B.C., born in January of 2006.1 Father’s counsel has
filed a petition for leave to withdraw as counsel and a brief pursuant to Anders
v. California, 386 U.S. 738 (1967). Upon review, we deny counsel’s petition
and remand this case for a proper concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b) and a compliant Anders brief or an
advocate brief.
We summarize the relevant factual and procedural history as follows.
B.C. was removed from Mother on March 27, 2015, when she was nine years
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1 By decree dated March 13, 2017, the court involuntarily terminated the
parental rights of M.S. (“Mother”). Mother did not file a notice of appeal, and
she is not a party to this appeal.
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old, and placed in the custody of Luzerne County Children and Youth Services
(“CYS”). Trial Court Opinion, 5/24/17, at 3. B.C. resides in kinship care with
her step-grandparents. Id. At the time of B.C.’s placement, Father was
incarcerated. Id. (citation to record omitted).
On November 3, 2016, CYS filed a petition for the involuntary
termination of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),
(2), (5), (8), and (b). An involuntary termination hearing occurred on March
3, 2017, during which CYS amended the petition against Father to proceed
under 23 Pa.C.S. § 2511(a)(1) and (b) only. CYS presented the testimony of
its caseworker, Lynn Lesh. Father, who was represented by court-appointed
counsel, testified on his own behalf.
By decree dated March 13, 2017, the orphans’ court involuntarily
terminated Father’s parental rights.2 On April 20, 2017, the court appointed
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2 We observe that the docket entries in the Court of Common Pleas of Luzerne
County do not comply with the rules regarding entry of orders. See Pa.R.A.P.
301(a)(1); Pa.R.A.P. 108(b); Pa.R.C.P. 236(b). We caution the Luzerne
County Court of Common Pleas to comply with the relevant rules for entry of
orders so that appeal periods are triggered. See Frazier v. City of
Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (citations omitted) (“Thus,
pursuant to the express terms of the rules, an order is not appealable until it
is entered on the docket with the required notation that appropriate notice
has been given”).
Because the subject decree was not entered on the trial court docket, the
appeal period in this case was never formally triggered. It would be, at this
juncture, a waste of judicial resources to remand the matter solely for the
filing of Rule 236(b) notice. Accordingly, in the interest of judicial economy,
we regard as done what should have been done and address counsel’s request
to withdraw.
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new counsel, Keith Hunter, Esquire, to represent Father. On April 24, 2017,
Father, through counsel, filed a notice of appeal and a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
The orphans’ court filed its Rule 1925(a) opinion on May 24, 2017. On August
29, 2017, counsel filed a petition for leave to withdraw as counsel and an
Anders brief.3
We may not address the merits of the appeal without first reviewing the
request to withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.
Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.
Super. 1997)). Therefore, we review Attorney Hunter’s petition at the outset.
In In re V.E., 611 A.2d 1267 (Pa. Super. 1992), this Court extended
the Anders principles to appeals involving the termination of parental rights.
We stated that counsel appointed to represent an indigent parent on appeal
from a decree involuntarily terminating parental rights may, after a
conscientious and thorough review of the record, petition this Court for leave
to withdraw from representation and submit an Anders brief. Id. at 1275.
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3 Attorney Hunter raises the following issues in his Anders brief:
1. Whether, upon a careful and conscientious review of the
record, counsel believes that the current appeal is wholly without
merit[?]
2. Whether the Court should appoint new counsel to pursue
the appeal[?]
Anders brief at 4.
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In Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), our Supreme
Court altered our application of the Anders briefing requirements to require
counsel to fully articulate the legal basis for his conclusion that the appeal is
frivolous.
In order to be permitted to withdraw, counsel must meet three
procedural requirements: 1) petition for leave to withdraw and state that,
after making a conscientious examination of the record, counsel has
determined that the appeal is frivolous; 2) furnish a copy of the Anders brief
to the appellant; and 3) advise the appellant that he or she has the right to
retain private counsel or raise, pro se, additional arguments that the appellant
deems worthy of the court’s attention. See Commonwealth v. Cartrette,
83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc) (citation omitted).
Attorney Hunter’s petition to withdraw states that he “filed the appeal
with two days until the expiration of the appeal deadline, and did not have
sufficient time to review the record for grounds on appeal.”4 Petition, 8/29/17,
at ¶ 2. As such, Attorney Hunter did not file a statement of intent to file an
Anders brief in lieu of filing a concise statement.5 As we have observed, he
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4 As stated above, because the decree was not entered on the trial court
docket, the appeal period was never triggered. See Frazier v. City of
Philadelphia, supra. Therefore, to the extent Attorney Hunter believed he
had two days to file the appeal before the appeal period expired, he was
mistaken.
5 This Court has explained as follows.
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timely filed a concise statement pursuant to Rule 1925(a)(2)(i) and (b),
wherein he asserted four errors. In his first and second assertions, Attorney
Hunter alleged that the court erred and/or abused its discretion in accepting
Father’s voluntary relinquishment of his parental rights. The court stated in
its Rule 1925(a) opinion, “Father never voluntarily relinquished his parental
rights.” Trial Court Opinion, 5/24/17, at 2. Indeed, it was Mother, not Father,
who relinquished her parental rights. Although Attorney Hunter subsequently
states in his petition to withdraw that he “fully and conscientiously reviewed
the record” and “believes that the appeal is wholly without merit,” he did not
request to amend the concise statement to correct these incorrect assertions
of error. Petition, 8/29/17, at ¶ 3. Based on these faulty assertions, we
discern no support for counsel’s request to withdraw.
Further, the court involuntarily terminated Father’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). In his Anders brief, Attorney
Hunter contends that any issue involving Section 2511(a)(1) is “wholly
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[Pa.R.A.P.] 1925(c)(4) creates an exception to the general rule of
waiver in criminal cases when counsel files a brief pursuant to
Anders. In such an instance[,] a concise statement of errors
complained of is not required. Rather, counsel ‘may file of record
and serve on the judge a statement of intent to file’ an Anders
brief ‘in lieu of filing a Statement.’
In re J.T., 983 A.2d 771, 773-774 (Pa. Super. 2009). We held that this
procedure is applicable in parental termination cases. Id. at 774.
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without merit.” However, in his remaining assertions in the concise
statement, Attorney Hunter did not preserve a challenge to Section
2511(a)(1).6 It is well-established that any issue not raised in a concise
statement is waived on appeal. See Dietrich v. Dietrich, 923 A.2d 461, 463
(Pa. Super. 2007); see also Commonwealth v. Flores, 909 A.2d 387, 389
(Pa. Super. 2006) (stating, “when an appellant fails to file a proper 1925(b)
statement, there will be waiver even if the trial court writes an opinion.”)
Moreover, in the Anders context, this Court has explained, “Anders seeks to
ensure that an attorney, while seeking to withdraw, will nonetheless preserve
the arguable issues that the client might want to pursue pro se or by new
counsel. . . . As part of this obligation to preserve issues, Anders counsel
must file a proper 1925(b) statement.” Commonwealth v. Flores, 909 A.2d
at 390. Accordingly, we remand this case for the filing of a Rule 1925(b)
statement that properly preserves all issues to be raised before this Court.
See id. at 392 (holding that, where counsel preserved none of the issues
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6 The concise statement provides, in relevant part, as follows.
3. The [orphans’] [c]ourt abused its discretion, committed an
error of law, and/or there was insufficient evidentiary support for
the [c]ourt’s decision that the best interests of the minor child
would be served by terminating [Father's] parental rights.
4. [CYS] acted improperly in seeking to terminate [Father’s]
parental rights.
Trial Court Opinion, 5/24/17, at 2.
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argued in the Anders brief, “we will afford [the] [a]ppellant his appellate
rights by remanding this case for the filing of a Rule 1925(b) statement which
properly preserves all issues to be raised before this Court”).
We deny counsel’s petition for leave to withdraw and remand this case.
On remand, the orphans’ court shall have seven days to either appoint new
counsel or direct current counsel to continue on this case. At the same time,
the court shall issue an order directing Father’s counsel to file a proper Rule
1925(b) statement within fourteen days. The orphans’ court shall promptly
file its opinion in response to the new Rule 1925(b) statement. The
Prothonotary of this Court will subsequently establish a new briefing schedule
for the parties, and Father’s counsel shall file either a compliant Anders brief
or an advocate brief.
Petition denied. Case remanded with instructions. Panel jurisdiction
retained.
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