In the Interest of: W.M., a minor, Appeal of: O.M. ( 2016 )

J-S54039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: W.M., a Minor : IN THE SUPERIOR COURT OF
Adjudicated Child : PENNSYLVANIA
:
:
:
:
:
APPEAL OF: O.M., SR., Natural :
Father : No. 160 WDA 2016
Appeal from the Decree entered January 13, 2016
In the Court of Common Pleas of Erie County
Civil Division at No(s): 90 of 2014
BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 04, 2016
O.M., Sr. (“Father”), appeals from the permanency review Order,
which changed the permanency goal for his son, W.M. (Child”) (born in July
of 2012), to adoption, pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6351.
Father’s counsel, Elizabeth Brew Walbridge, Esquire (“Counsel”), has filed a
Motion for leave to withdraw as counsel and a brief pursuant to Anders v.
California, 386 U.S. 738, 744 (1967). We remand for further proceedings.
On June 3, 2014, the Erie County Office of Children and Youth (“OCY”
or the “Agency”) filed a Motion for emergency protective custody and a
shelter care Petition with regard to Child. The trial court entered an Order of
protective custody on that same date. OCY filed a dependency Petition on
June 4, 2014. On June 10, 2014, OCY filed a Petition for shelter care, and
the trial court entered a shelter care Order. On that same date, Erie County
Court Administration filed a Motion for court-appointed counsel for K.R.,
J-S54039-16
(“Mother”). OCY filed an agreement for a master’s hearing. On July 1,
2014, the trial court entered an Order adjudicating Child dependent pursuant
to 42 Pa.C.S.A. § 6302(1), as Child lacked proper parental care and control,
and establishing the permanency goal for Child as return to parent or
guardian. On October 2, 2014, the trial court entered a permanency review
Order maintaining Child’s permanency goal. The trial court entered a
permanency review Orders maintaining Child’s permanency goal on February
4, 2015, and again on May 7, 2015.
On June 25, 2015, OCY filed a Motion to return Child to home. On
June 29, 2015, the trial court granted OCY’s Motion, and entered an Order
directing that Child be returned to home, in the care of Mother. The trial
court further ordered that OCY would retain legal custody, and the matter
would remain open for continued monitoring of compliance. Notably, the
Order provided that all other aspects of the May 6, 2015 permanency review
Order would remain in effect. On July 22, 2015, the trial court entered a
permanency review Order maintaining legal custody with OCY, and physical
custody with Mother.
On July 31, 2015, OCY filed a Motion for an emergency protective
order and a shelter care Petition. The trial court entered an emergency
protective custody Order, and a shelter care Order maintaining legal custody
with OCY, and returning physical custody to OCY, with Child to be placed in
foster care.
-2-
J-S54039-16
On January 13, 2016, following a hearing, the trial court entered an
Order changing Child’s permanency goal to adoption. The trial court did not
file any opinion in explanation of the Order.
Father timely filed a timely Notice of appeal. Counsel did not file a
concise statement of errors complained of on appeal with the Notice of
appeal, see Pa.R.A.P. 1925(a)(2)(i), (b), but, rather, indicated her intention
to file a motion to withdraw as counsel pursuant to Anders, citing Pa.R.A.P.
1925(c)(4).1 The trial court has not filed an Opinion.
On appeal, Counsel has filed the Motion to withdraw and an Anders
brief. The Anders brief presents the following claim for our review:
“Whether the juvenile court had competent, sufficient evidence to change
the goal to adoption under the dictates of the Juvenile Act and the
corresponding case law[?]” Anders Brief (amended) at 4.2 Father did not
file a pro se brief or retain alternate counsel for this appeal.
In In re V.E., 611 A.2d 1267, 1274-75 (Pa. Super. 1992), this Court
extended the Anders principles to appeals involving the termination of
parental rights. Pursuant to Anders, when counsel believes an appeal is
____________________________________________
1
See In re J.T., 983 A.2d 771, 774 (Pa. Super. 2009) (holding that
decision of counsel to follow Pa.R.A.P. 1925(c)(4) procedure in a termination
of parental rights case was proper).
2
On April 12, 2016, Counsel filed an amended Anders brief, and, on April
13, 2016, Counsel filed an amended Motion to withdraw as counsel, in
compliance with the directives in this Court’s Order entered on April 5, 2016.
-3-
J-S54039-16
frivolous and wishes to withdraw representation, he or she must do the
following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record . . ., counsel
has determined the appeal would be frivolous;
(2) file a brief referring to anything that might arguably support
the appeal, but which does not resemble a “no-merit” letter or
amicus curiae brief; and
(3) furnish a copy of the brief to defendant and advise him of his
right to retain new counsel, proceed pro se, or raise any
additional points he deems worthy of the court’s attention.
In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).
“When considering an Anders brief, this Court may not review the merits of
the underlying issues until we address counsel’s request to withdraw.” Id.
In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our
Supreme Court addressed the second requirement of Anders, i.e., the
contents of an Anders brief, and required that the brief
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous;
and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
-4-
J-S54039-16
Santiago, 978 A.2d at 361. “After an appellate court receives an Anders
brief and is satisfied that counsel has complied with the aforementioned
requirements, the Court then must undertake an independent examination
of the record to determine whether the appeal is wholly frivolous.” In re
S.M.B., 856 A.2d at 1237.
With respect to the third requirement of Anders, that counsel inform
the defendant of his or her rights in light of counsel’s withdrawal, this Court
has held that counsel must “attach to their petition to withdraw a copy of the
letter sent to their client advising him or her of their rights.”
Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Here, Counsel has complied with each of the requirements of Anders.
Counsel indicates that she conscientiously examined the record and
determined that an appeal would be frivolous. Further, Counsel’s Anders
brief comports with the requirements set forth by the Supreme Court of
Pennsylvania in Santiago. Finally, the record contains a copy of the letter
that Counsel sent to Father, advising him of his right to proceed pro se or
retain alternate counsel and file additional claims, and stating Counsel’s
intention to seek permission to withdraw. Accordingly, Counsel now has
complied with the procedural requirements for withdrawing from
representation, and we will proceed with our own independent review.
Our Supreme Court set forth our standard of review for dependency
cases as follows:
-5-
J-S54039-16
[T]he standard of 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 does not require the appellate court to accept the
lower court’s inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). “[A]n abuse of discretion does
not result merely because the reviewing court might have reached a
different conclusion. Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012) (citations omitted).
This matter is controlled by the Juvenile Act, 42 Pa.C.S.A. § 6301.
When considering a petition for goal change for a dependent child, the trial
court considers
the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made
towards alleviating the circumstances which necessitated
the original placement; the appropriateness and feasibility
of the current placement goal for the child; and, a likely
date by which the goal for the child might be achieved.
In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007) (citing 42 Pa.C.S.A.
§ 6351(f)). Additionally, section 6351(f.1) requires the trial court to make a
determination regarding the child’s placement goal:
(f.1) Additional determination.—Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall determine one
of the following:
-6-
J-S54039-16
* * *
(2) If and when the child will be placed for adoption,
and the county agency will file for termination of
parental rights in cases where return to the child’s
parent, guardian or custodian is not best suited to the
safety, protection and physical, mental and moral
welfare of the child.
42 Pa.C.S.A. § 6351(f.1).
Importantly, by failing to file an Opinion with its Order and/or a
Pa.R.A.P. 1925(a) Opinion, the trial court did not cite to, or provide an
analysis of, the factors under section 6351(f) and (f.1) of the Juvenile Act,
which a trial court must consider at a permanency review hearing. See 42
Pa.C.S.A. § 6351(f) (providing that “[a]t each permanency hearing, a court
shall determine all of the [enumerated factors in subsection (f)] ….)”
(emphasis added);3 id. § 6351(f.1) listing the alternatives available to the
juvenile court for the permanent placement of a dependent child). See also
In re R.J.T., 9 A.3d 1179, 1186-87 n.10 (Pa. 2010) (setting forth the
factors and observing that a trial court is obligated to consider them at a
permanency review hearing); id. at 1198 (Orie Melvin, J., dissenting)
(opining that “[n]owhere in its opinion did the trial court either acknowledge
its duty pursuant to 42 Pa.C.S.A. § 6351(f) . . . nor did it explain its
evaluation of the considerations enumerated therein. The Superior Court
____________________________________________
3
We also did not find any discussion by the trial court of the section 6351(f)
and (f.1) factors on the record at the permanency review hearing.
-7-
J-S54039-16
was responsible for ensuring that the record represented a comprehensive
inquiry, and that the trial court applied appropriate legal principles.”).
Accordingly, we hereby remand this case to the trial court Within 30
days from the filing of this Memorandum, the trial court is directed to file an
Opinion setting forth the court’s consideration of the evidence concerning the
factors set forth in 42 Pa.C.S.A. § 6351(f) and (f.1). We defer our ruling on
Counsel’s amended Motion to withdraw until our review of the trial court’s
opinion.4
Case remanded with instructions; Superior Court panel jurisdiction
retained.
____________________________________________
4
In a letter to this Court, filed on February 4, 2016, the trial court indicated
that it would not file an opinion pursuant to Pa.R.A.P. 1925(a), because
Counsel intended to file a Rule 1925(c)(4) statement. Further, the trial
court erroneously stated that the case involved an involuntary termination of
parental rights decree.
-8-