In the Int. of: L.M.C.R., Appeal of: M.R.C. ( 2022 )

J-A09025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.M.C.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: M.R.C., MOTHER :
:
:
:
: No. 2336 EDA 2021
Appeal from the Decree Entered October 26, 2021
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000413-2021
IN THE INTEREST OF: L.C.-R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: M.R., MOTHER :
:
:
:
: No. 2399 EDA 2021
Appeal from the Order Entered October 26, 2021
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0001852-2019
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED JUNE 7, 2022
M.R. (“Mother”) appeals from the decree involuntarily terminating her
parental rights to her daughter, L.M.C.R. a/k/a L.C.-R. (“Child”) and the order
changing Child’s permanency goal to adoption. Additionally, Mother’s counsel
(“Counsel”) has filed briefs pursuant to Anders v. California, 386 U.S. 738____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A09025-22
(1967), and has petitioned to withdraw from representation. We deny
counsel’s petitions to withdraw and direct her to file an advocate’s brief or an
amended Anders brief.
The relevant factual and procedural history is as follows. Mother was
incarcerated when Child was born in December 2019. N.T., 10/26/21, at 8.
The Department of Human Services of the City of Philadelphia (“DHS”)
removed Child from Mother and placed her in kinship care with her maternal
grandmother in December 2019. Id. at 8-9. The juvenile court adjudicated
Child dependent on January 6, 2020, and established Child’s permanent
placement goal as return to parent or guardian. The court conducted regular
permanency review hearings at which it found Mother to be minimally
compliant or non-compliant with the permanency plan and not progressing
toward alleviating the circumstances necessitating placement. The court
maintained Child’s commitment and placement goals throughout these
proceedings.
On July 23, 2021, DHS filed a petition for the termination of parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and a
petition for goal change to adoption. The court held a hearing on October 26,
2021. Mother, whom Community Legal Services represented, did not attend
the hearing. DHS presented the testimony of Community Umbrella Agency
(“CUA”) case manager Veronica Soto. A member of the Defender Association
-2-
J-A09025-22
of Philadelphia, Child Advocacy Unit, represented Child, who was nearly two
years old.1
Following the hearing, the court entered a decree terminating Mother’s
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b), and issued an
order changing Child’s permanent placement goal to adoption. On November
23, 2021, Mother filed timely, counseled, notices of appeal from the decree
terminating her parental rights and the goal change order, in addition to
concise statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).2 The court likewise complied with Rule 1925. Counsel
____________________________________________
1 Pursuant to In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020), we must
verify that the court appointed counsel to represent Child, and if counsel
served in a dual role, that the court determined before appointment that there
was no conflict between a child’s best and legal interests. For children too
young to express a preference, there is no conflict between the child’s legal
and best interests, and the child’s right to counsel is satisfied by the
appointment of an attorney-guardian ad litem (“GAL”). See In re T.S., 192
A.3d 1080, 1092-93 (Pa. 2018). Here, because Child was less than two years
old at the time of the proceeding, the GAL did not have a conflict in
representation.
We additionally observe that, while the trial court appointed counsel in 2019
to represent Child as GAL/counsel in the dependency matter, it did not appoint
GAL/counsel in the termination matter. Cf. T.S., 192 A.3d at 1090 n.19
(stating, “It would be a better practice for the court to place an order on the
record formalizing the GAL’s role for termination purposes. Nevertheless, we
are disinclined to elevate form over substance.”) (internal citations omitted).
2 Mother had previously filed a pro se notice of appeal from the decree
terminating her parental rights.
-3-
J-A09025-22
subsequently filed petitions to withdraw, as well as Anders briefs. This Court
sua sponte consolidated Mother’s appeals on January 27, 2022.
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super.
2010). Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw from representation, he/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 any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). 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-A09025-22
Santiago, 978 A.2d at 361. Anders principles apply to appeals involving the
termination of parental rights. See In re V.E., 611 A.2d 1267, 1274-75 (Pa.
Super. 1992). “Once counsel has satisfied the [Anders] requirements, it is
then this Court’s duty to conduct its own review of the trial court’s proceedings
and render an independent judgment as to whether the appeal is, in fact,
wholly frivolous.” Edwards, 906 A.2d at 1228 (citation omitted).
Counsel has satisfied Anders’ first mandate by asserting in her petitions
to withdraw that she has made a conscientious review of the record and
determined the appeals would be frivolous. Counsel has also complied with
Anders’ third requirement by providing Mother with a copy of Counsel’s
Anders briefs and advising Mother of her right to proceed pro se or with new
counsel.3
Counsel’s brief, however, does not comply with Anders’ second
mandate, as set forth in Santiago. Counsel concludes that the appeal is
wholly frivolous, and summarizes the facts, but does not discuss the statutory
and case law relevant to the decree terminating Mother’s parental rights,
namely, 23 Pa.C.S.A. § 2511 (a)(1) and (b). Counsel’s Anders brief relating
to Mother’s appeal from the goal change order is likewise devoid of statutory
____________________________________________
3 Although Counsel failed to attach to her petition copies of letters sent to
Mother informing her of her rights, Counsel subsequently complied with this
Court’s February 7, 2022 order directing her to file copies of those letters with
this Court’s Prothonotary.
-5-
J-A09025-22
and case law pertinent to the goal change order. See 42 Pa.C.S.A. §
6351(f.1), (g). Therefore, we find Counsel’s Anders briefs inadequate
pursuant to Santiago.
Accordingly, we direct Counsel to file either an advocate’s brief or an
amended Anders brief that satisfies Santiago’s requirements. The brief shall
discuss the relevant law pertaining to section 2511(a)(1) and (b), as well as
the goal change, and apply that law to the facts of this case. See
Commonwealth v. Strasser, 134 A.3d 1062, 1066 (Pa. Super. 2016)
(directing counsel to file a merits brief or a compliant Anders brief where
counsel had not “cited pertinent case law, addressed specifically applicable
statutory law, nor applied [either] to the facts of [the] case . . ..”). As the
matters are now consolidated, counsel may file a single brief within twenty-
one days of this memorandum. DHS shall have twenty-one days thereafter
to file a supplemental response brief.
Petitions to withdraw denied. Counsel for Mother is directed to file an
advocate’s brief or an Anders brief consistent with this memorandum.
Judge Pellegrini joins this memorandum. Judge Nichols concurs in the
result.
-6-
J-A09025-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2022
-7-